Major setback for religious right

In article <c22jdi$19ee$1@agate.berkeley.edu> magidin DeleteThis @math.berkeley.edu (Arturo Magidin) writes:
<In article <c22a1o$cvc$1@oasis.ccit.arizona.edu>,
<Cary Kittrell <cary DeleteThis @afone.as.arizona.edu> wrote:
<>In article <d40a9e18.0402291320.7e927b54 DeleteThis @posting.google.com> magidin DeleteThis @math.berkeley.edu (Arturo Magidin) writes:
<
< [.snip.]
<
<><There are two ways in which the Chief Justice, first among equals, can
<><exert big influence on the Court: one is with the agenda: any justice
<><can put a case into the list of consideration for Conference, but it
<><is the Chief Justice that makes the list; so it takes active action by
<><an Associate Justice to put a case up for discussion, otherwise, the
<><selection is made by the Chief Justice. The vast majority of cases are
<><then chosen by the CJ, the rest are not granted certiorari at all.
<><
<><The second is his ability to assign opinions. This one can be very
<><effective, for example by assigning an opinion to a shaky member of a
<><slim majority to "lock his/her vote in" ((s)he is unlikely to change
<><his/her vote if he is writing for the majority), or by assigning an
<><opinion to a moderate member and thereby ensuring a 'narrow' opinion.
<><
<><Arturo Magidin, sans .sig
<>
<>Fascinating. Thank you very much.
<>
<>I guess my initial reactions are that this system a) is heirarchical
<>to a bizarre degree, and b) gives the Chief Justice WAY too much
<>power.
<
<Yes and no. In the past, some Chief Justices have certainly wielded
<their power very strongly; CJ John Marshall, of course, who stopped
<the practice of seriatim opinions (each justice writing his own in
<each case) and enforced unanimity for much of his term in the
<court. CJ Evans Hughes was also reputed to be very domineering in
<conference, not allowing for much give and take.
<
<CJ Warren, in his later years (once William Brennan was on the Court,
<who was famous for being able to negotiate controlling majorities) was
<apparently very good at strategizing the assignment of opinions to
<create agreement and unanimity in cases he felt were important, like
<Brown vs. Board of Education.
<
<On the other hand, other Chief Justices have attempted to use this
<power and had it backfire on them. If you read, for example, _The
<Brethren_, by Armstrong and Bob Woodward, there is the claim that CJ
<Burger attempted to use his power to assign opinions to control the
<agenda, but it tended to backfire. In some cases he would vote with
<the majority solely to assign the opinion and then attempt to subvert
<the opinion as going the other way, but it never seemed to work. And
<many times, he had an opinion "slip away" from him because people
<disagreed with how he was writing it, thus having a "concurring"
<opinion get more votes than his "opinion for the court", thus becoming
<the de facto opinion for the court.
<
<Likewise, in his later years as Senior Justice, Brennan seemed to have
<some trouble keeping together coalitions in some cases, by assigning
<the opinion to himself and losing shaky or marginal votes from Nixon
<or Reagan appointees.
<
<> If he were highly political, and utterly uncaring
<>about public opinion and that of history, he could simply
<>block all cases which might threaten his view of the way
<>things should be...
<
<I don't really see how he could "block all cases." All justices
<receive the petitions; it's just that most of the cases put up for
<discussion are put up at the direction of the Chief Justice. If other
<justices do not agree with the CJ and realize that a lot of cases they
<feel are important are not being discussed, then they would start
<putting them on the agenda themselves. Justice Stevens right now, for
<example, does not participate in the "cert pool", which indicates to
<me that he is very careful about making sure cases he considers
<important are up for discussion.
<
<(The 'cert pool' functions as follows: the Supreme Court receives way
<too many petitions for review; for some years now, most justices have
<pooled together their clerks for review of them. Rather than each
<Chamber/Justice's clerks reviewing all petitions and making
<recommendations, the petitions are 'farmed out', more or less
<randomly, to all clerks, so that each cert is reviewed only by one or
<two clerks, who write up a memo to all justices participating
<indicating what the case is about, and giving a recommendation on
<whether or not to suggest that certiorari be granted. If a justice
<agrees that a case should be granted cert, then he just has to send
<the name/number of the case to the CJ so the case is put in the agenda
<up for discussion at the next meeting. Then, any four justices must
<vote to grant cert for the case to be set for review; otherwise, the
<petition is denied.
<
<Justice Stevens does not participate in the 'cert pool' (or at least
<he did not until very recently). His clerks review ->all<- cert
<petitions that come into the court, and write their recommendations to
<him and him alone; he then decides which ones to support for cert and
<which ones not to. The former, he would ask that they be put up for
<dicussion in conference. The latter, he either says nothing, in
<case nobody puts them up for discussion, or simply votes against
<hearing if they are brought up in conference. As I recall, Justices
<get a list of cases that will be discussed in conference sufficiently
<ahead of time that they can ask for other cases to be added.)
<
<
<That said, there is a large degree to which the CJ can shape the
<agenda for the court based on his intentions and views, by placing
<cases that address those issues on the agenda. CJ Burger attempted to
<turn back much of the Warren Court's decisions, but he just didn't
<have the support among the associate justices to manage it, although
<there were many cases that got heard and then reaffirmed. CJ
<Rehnquist, by contrast, has succeeded in limiting many of those
<rulings; he has also succeeded in scaling back the commerce power of
<Congress.
<

Wow. Are you sure you're not really Nina Totenberg in drag? Or
out of drag?

Fascinating stuff. Thanks yet once again for typing all this in.
They're all keepers.

-- cary
 >> Stay informed about: Major setback for religious right 

On Tue, 2 Mar 2004 13:24:15 -0600, Fear gan dia wrote
(in message <4044df5f.002.TakeThisOut@ddtbdqshrhhl.com>):

> Verily verily I say unto you, it is written by Gray Shockley
> <gray-87a.TakeThisOut@cybercoffee.org>
> in <0001HW.BC658583009D559214D8D280.TakeThisOut@news.giganews.com>:
>
>>
>> On Fri, 27 Feb 2004 16:31:56 -0600, stoney wrote
>> (in message <e9hv30lvnf6op20liqtlgu184ur1ad85dm.TakeThisOut@4ax.com>):
>>
>>> On Wed, 25 Feb 2004 15:58:00 -0500, "ZenIsWhen"
>>> <ZenIsWhen.TakeThisOut@anywhere.com>, Message ID:
>>> <103q32dl5ocusb2.TakeThisOut@corp.supernews.com> wrote in alt.atheism;
>>>
>>>>
>>>> <buckeye_ELO.TakeThisOut@nospam.net> wrote in message
>>>> news:ik1q3055v19pv7s7ufesb703f9bfhmgcv2@4ax.com...
>>>>>
>>>>> US Top Court Upholds Religion Scholarship Ban
>>>>>
>>>> http://wireservice.wired.com/wired/story.asp?section=Breaking&storyId=825
>>>> 56
>>>> 4
>>>> &tw=wn_wire_story
>>>>
>>>> First of all ... I would have used a different header - perhaps one that
>>>> indicates the Constitution was defend AGAINST attacks from the Religious
>>>> Right.
>>>>
>>>> Second ........ this is a quote from the article.........
>>>>
>>>> "
>>>> Scalia wondered what would happen next.
>>>>
>>>> "Will we deny priests and nuns their prescription drug benefits on the
>>>> ground that taxpayers' freedom of conscience forbids medicating the
>>>> clergy
>>>> at public expense?""
>>>>
>>>>
>>>>
>>>> This is a Supreme Court justice?
>>>>
>>>> This STUPID statement makes him look exactly like the ignorant fanatical
>>>> Reich wing zealots he is supporting!
>>>
>>> That's because Scalia *is* an ignorant fanatical Reich wing zealot.
>>>
>>
>> And that's his /good/ side.
>
> Remember when he tried to justify the death penalty on the
> grounds that for xians, "death is no big deal"?
>
> http://www.commondreams.org/views02/0708-03.htm
>

I hadn't seen that before.

Associate "Justice" Scalia comes down here to Mississippi at least once a
year. The last time (unless he done snucken innin) was an address to the
Mississippi College School of Law.

Now, across the Interstate from MC is the building housing the main
headquarters (as opposed to all the /other/ headquarters) of a gentleman from
Canada who is (well, "was") Mississippi College's most famous and successful
(for a time) graduate, Mr. Bernard Ebbers of WorldCom (later called MCI after
they received a smudgin' of bad publicity).


What Bernie Ebbers has done to pension funds, Associate Justice Scalia seems
to have done to justice in the United States.

Scalia seems to be a follower of the Moore-On.

> --
> The Very Irrev. Fear gan dia
> There's one born again every minute.



Gray Shockley
--------------------------------------------------------
When trouble arises and things look bad, there is always one
individual who perceives a solution and is willing to take
command. Very often, that individual is crazy. -Author Unk
 >> Stay informed about: Major setback for religious right 

In article <guj940du8137m45l89k96bretc4761pk0o RemoveThis @4ax.com>,
Bob LeChevalier <lojbab RemoveThis @lojban.org> wrote:

[.snip.]


>I don't think so. But I've heard (and it might have been the case in
>the last decision) that the CJ can and sometimes has chosen to vote
>with the majority on a case that he would prefer the minority side, so
>that he can use his power to seniority to write/assign the opinion so
>that it is written narrowly or skewed in a direction that leans future
>decisions in a way that he wants the court to move.

This was attributed to CJ Burger a lot...

Both _The Brethren_ by Armstrong and Woodward, and _Closed Chambers_
by Lazarus tell of what happened after the first oral arguments in Roe
v. Wade (which would eventually get reargued). The Court had only 7
justices (Hugo Black and John M. Harlan had retired in September, just
after voting to hear the case).

At the time (I believe this practice has been changed) tradition in
conference when voting on cases was for the CJ to speak first, then
the most senior associate, down to the most junior, and then to vote
in inverse order; so the most junior member would speak last and vote
first, the CJ would speak first and vote last. However, it was also
common for the justices to cast a preliminary vote during the
discussion, so the CJ would give his point of view, and say "I would
vote to affirm" or "I would vote to reverse," and then just say if
they changed their mind after the discussion.

After the round of discussion, it seemed that the Court had split 4-3
or 5-2, with William O. Douglas (the senior associate), William
Brennan, Thurgood Marshall, and Potter Stewart in favor of striking
down the Texas Law [reversing the lower court], but without agreeing
on the reasoning; Byron White and Warren Burger in favor of upholding
[affirming], and Harry Blackmun, then the most junior justice and
still considered the "Minnesota twin" of Warren Burger who voted with
the Chief in all cases, apparently undecided on the issue.

However, Burger marked himself on the reversing column in the voting
sheets, and proceeded to assign the opinion to Blackmun. This enraged
Douglas, who thought he was the senior member of the majority and thus
had the power to assign the opinion, to the point that he actually
sent a memo to the Chief saying that Burger had voted with the
minority and could not assign the opinion, and particularly not to
->another<- member of the minority. (Douglas's memo apparently
mentioned the 4-3 split, but Blackmun would later recall that he was
on the same side as Douglas, so in his view the conference had split
5-2). Burger replied that although he had said he "would vote to
affirm", his vote was actually cast last as was traditional, and he
had changed his mind after hearing the discussion; he felt that the
reasoning was unclear, and that this was a case that would be "made or
broken on the writing." Blackmun took the exchange to mean that the
Chief considered the issue unclear, and had assigned him to prepare a
bench memo on the case, rather than a full-fledged opinion (apparently
->not<- the intention of Burger in this case, but an apparently common
practice in the Burger Court for close cases). In the aftermath of
Blackmun's draft, which failed to garner many votes and produced a
flurry of concurrences with different reasonings from the still
enraged Douglas and from Marshall and Stewart, it was decided to
schedule re-arguments for the next term, when the two replacements,
Rehnquist and Powell, would be on the court. Many think that Burger
changed his vote with this particular hope in mind, counting Blackmun
in his camp, but he was eventually disappointed and ended on the
losing side anyway.

Both _The Brethren_ and _Closed Chambers_ claim that Burger frequently
abused the assigning power in similar fashion, though Roe v. Wade was
the most important case and most egregious abuse up to that time
(which was still fairly early in Burger's term).

--
======================================================================
"It's not denial. I'm just very selective about
what I accept as reality."
--- Calvin ("Calvin and Hobbes")
======================================================================

Arturo Magidin
magidin RemoveThis @math.berkeley.edu
 >> Stay informed about: Major setback for religious right 

In article <c230mr$odr$1@oasis.ccit.arizona.edu>,
Cary Kittrell <cary.RemoveThis@afone.as.arizona.edu> wrote:

[.snip.]

>Wow. Are you sure you're not really Nina Totenberg in drag? Or
>out of drag?

I don't know who Nina Totenberg is, so I wouldn't know. (-: I'm sure
nobody has seen us at the same time in the same place...

>Fascinating stuff. Thanks yet once again for typing all this in.
>They're all keepers.

If you are interested in this sort of thing, you can try to find a
copy of _The Brethren: Inside the Supreme Court_ by Scott Armstrong
and Bob Woodward; it's out of print and rather outdated in terms of
trends in the Supreme Court, of course (it was originally published
either during or just after the end of the Ford administration). But
there seem to be a good number of copies at reasonable prices
available from Bookfinder at very reasonable prices ($4 - $22, with
most around $10-$12). Or the more recent book by Edward Lazarus,
_Closed Chambers: The Rise, Fall, and Future of the Modern Supreme
Court_.

The former is more journalistic, in the style of, say, Woodward's own
_The Last Days_; the latter is a first-hand account by a former clerk
to Justice Blackmun. It has some history, much personal commentary,
lots of stories about his particular year in the court and the
politicking among clerks, but it still offers a very interesting and
fascinating look at how the Court operates, as well as some thoughtful
comments on issues like capital punishment.

--
======================================================================
"It's not denial. I'm just very selective about
what I accept as reality."
--- Calvin ("Calvin and Hobbes")
======================================================================

Arturo Magidin
magidin.RemoveThis@math.berkeley.edu
 >> Stay informed about: Major setback for religious right 

In article <c25fag$28l6$1@agate.berkeley.edu> magidin.DeleteThis@math.berkeley.edu (Arturo Magidin) writes:
<In article <c230mr$odr$1@oasis.ccit.arizona.edu>,
<Cary Kittrell <cary.DeleteThis@afone.as.arizona.edu> wrote:
<
< [.snip.]
<
<>Wow. Are you sure you're not really Nina Totenberg in drag? Or
<>out of drag?
<
<I don't know who Nina Totenberg is, so I wouldn't know. (-: I'm sure
<nobody has seen us at the same time in the same place...

Nina Totenberg is one of the original "Uterine Troika", the three
women who were the movers and shakers in the early days of
National Public Radio. Nina still reports for NPR, and
confines herself entirely to the activities of the Supreme Court.
When an interesting case is in progress, she'll often read aloud
transcripts of the oral arguments.

<
<>Fascinating stuff. Thanks yet once again for typing all this in.
<>They're all keepers.
<
<If you are interested in this sort of thing, you can try to find a
<copy of _The Brethren: Inside the Supreme Court_ by Scott Armstrong
<and Bob Woodward; it's out of print and rather outdated in terms of
<trends in the Supreme Court, of course (it was originally published
<either during or just after the end of the Ford administration). But
<there seem to be a good number of copies at reasonable prices
<available from Bookfinder at very reasonable prices ($4 - $22, with
<most around $10-$12). Or the more recent book by Edward Lazarus,
<_Closed Chambers: The Rise, Fall, and Future of the Modern Supreme
<Court_.
<
<The former is more journalistic, in the style of, say, Woodward's own
<_The Last Days_; the latter is a first-hand account by a former clerk
<to Justice Blackmun. It has some history, much personal commentary,
<lots of stories about his particular year in the court and the
<politicking among clerks, but it still offers a very interesting and
<fascinating look at how the Court operates, as well as some thoughtful
<comments on issues like capital punishment.

Thank you. You may just have gotten me interested enough to pick
up the more current book.


-- cary
 >> Stay informed about: Major setback for religious right 

On Wed, 3 Mar 2004 14:31:12 -0600, Arturo Magidin wrote
(in message <c25fag$28l6$1@agate.berkeley.edu>):

> In article <c230mr$odr$1@oasis.ccit.arizona.edu>,
> Cary Kittrell <cary.RemoveThis@afone.as.arizona.edu> wrote:
>
> [.snip.]
>
>> Wow. Are you sure you're not really Nina Totenberg in drag? Or
>> out of drag?
>
> I don't know who Nina Totenberg is, so I wouldn't know. (-: I'm sure
> nobody has seen us at the same time in the same place...
>
>> Fascinating stuff. Thanks yet once again for typing all this in.
>> They're all keepers.
>
> If you are interested in this sort of thing, you can try to find a
> copy of _The Brethren: Inside the Supreme Court_ by Scott Armstrong
> and Bob Woodward; it's out of print and rather outdated in terms of
> trends in the Supreme Court, of course (it was originally published
> either during or just after the end of the Ford administration).


Two years into Jimmy Carter. Copyright 1979.

/gray/





> But
> there seem to be a good number of copies at reasonable prices
> available from Bookfinder at very reasonable prices ($4 - $22, with
> most around $10-$12). Or the more recent book by Edward Lazarus,
> _Closed Chambers: The Rise, Fall, and Future of the Modern Supreme
> Court_.
>
> The former is more journalistic, in the style of, say, Woodward's own
> _The Last Days_; the latter is a first-hand account by a former clerk
> to Justice Blackmun. It has some history, much personal commentary,
> lots of stories about his particular year in the court and the
> politicking among clerks, but it still offers a very interesting and
> fascinating look at how the Court operates, as well as some thoughtful
> comments on issues like capital punishment.
>
>
 >> Stay informed about: Major setback for religious right 

In article <c25fr5$57a$1@oasis.ccit.arizona.edu>,
Cary Kittrell <cary.RemoveThis@afone.as.arizona.edu> wrote:
>In article <c25fag$28l6$1@agate.berkeley.edu> magidin.RemoveThis@math.berkeley.edu (Arturo Magidin) writes:
><In article <c230mr$odr$1@oasis.ccit.arizona.edu>,
><Cary Kittrell <cary.RemoveThis@afone.as.arizona.edu> wrote:
><
>< [.snip.]
><
><>Wow. Are you sure you're not really Nina Totenberg in drag? Or
><>out of drag?
><
><I don't know who Nina Totenberg is, so I wouldn't know. (-: I'm sure
><nobody has seen us at the same time in the same place...
>
>Nina Totenberg is one of the original "Uterine Troika", the three
>women who were the movers and shakers in the early days of
>National Public Radio. Nina still reports for NPR, and
>confines herself entirely to the activities of the Supreme Court.
>When an interesting case is in progress, she'll often read aloud
>transcripts of the oral arguments.

Weird. I listen to NPR almost daily; I guess it must be on at times
when I'm at work...

But, looking at http://www.npr.org/about/people/bios/ntotenberg.html I
think I can confidently say that I'm not her, in or out of drag...


>Thank you. You may just have gotten me interested enough to pick
>up the more current book.

Depending on your political leanings, you may also look up _May it
Please the Court_, edited by Peter Irons, which has edited recordings
of oral arguments before the Supreme Court, ranging from landmark
cases during the Warren era (Cooper v. Aaron, Gideon v. Wainright,
Abbington v. Schempp) to more modern cases under Rehnquist (Deshaney
v. Winnebago County).

--
======================================================================
"It's not denial. I'm just very selective about
what I accept as reality."
--- Calvin ("Calvin and Hobbes")
======================================================================

Arturo Magidin
magidin.RemoveThis@math.berkeley.edu
 >> Stay informed about: Major setback for religious right 

cary.DeleteThis@afone.as.arizona.edu (Cary Kittrell) wrote:


>:|Thank you. You may just have gotten me interested enough to pick
>:|up the more current book.
>

I have Closed Chambers,
I don't have the Brethren but am going to the library as soon as it opens
to check it out.
Another good book is Brennan vs. Rehnquist, The Battle for the
Constitution, Peter Irons
I have May it Please the Court, First Amendment, Peter Irons, It is both
book and cassette tapes.

There was a book I had checked out from the Library that I figured I would
remember the name of so I didn't write it down. (I don't remember the name
now) Anyways it was the one that went into great detail about how modern
Justices write few of their own opinions or do the research. That basically
the clerks do the research, write the opinions and the justices "wake up"
long enough to sign off on it.
I would like to find that particular book again and copy/make notes of that
section along with having the complete cite for the information.

Also good for different reasons are
The Rehnquist Choice, John W. Dean
Nine Scorpions in a Bottle, Great Judges and Cases of the Supreme Court,
Max Lerner.
A People's History of the Supreme Court , Peter Irons os good too

Also sections of this is interesting as well:
Sincere and Strategic Voting Norms on Multimember Courts, Evan H. Caminker
Michigan Law Review, Vol 97, Number 8 August 1999
 >> Stay informed about: Major setback for religious right 

magidin.DeleteThis@math.berkeley.edu (Arturo Magidin) wrote:

>:|In article <c230mr$odr$1@oasis.ccit.arizona.edu>,
>:|Cary Kittrell <cary.DeleteThis@afone.as.arizona.edu> wrote:
>
> [.snip.]
>
>>Wow. Are you sure you're not really Nina Totenberg in drag? Or
>>out of drag?
>
>I don't know who Nina Totenberg is, so I wouldn't know. (-: I'm sure
>:|nobody has seen us at the same time in the same place...
>
>>Fascinating stuff. Thanks yet once again for typing all this in.
>>They're all keepers.
>
>:|If you are interested in this sort of thing, you can try to find a
>:|copy of _The Brethren: Inside the Supreme Court_ by Scott Armstrong
>:|and Bob Woodward; it's out of print and rather outdated in terms of
>:|trends in the Supreme Court, of course (it was originally published
>:|either during or just after the end of the Ford administration). But
>:|there seem to be a good number of copies at reasonable prices
>:|available from Bookfinder at very reasonable prices ($4 - $22, with
>:|most around $10-$12). Or the more recent book by Edward Lazarus,
>:|_Closed Chambers: The Rise, Fall, and Future of the Modern Supreme
>:|Court_.

I just bought The Brethren off Amazon for 0.66
They had 40 some used copies ranging from 0.66 and up.

Guess I will go to the central library and get Rehnquist's The Supreme
Court
 >> Stay informed about: Major setback for religious right 

On Tue, 02 Mar 2004 19:24:15 GMT, "Fear gan dia"
<dbxxlnhtbxbx.RemoveThis@ddtbdqshrhhl.com>, Message ID:
<4044df5f.002.RemoveThis@ddtbdqshrhhl.com> wrote in alt.atheism;

>Verily verily I say unto you, it is written by Gray Shockley <gray-87a.RemoveThis@cybercoffee.org>
>in <0001HW.BC658583009D559214D8D280.RemoveThis@news.giganews.com>:
>
>>
>> On Fri, 27 Feb 2004 16:31:56 -0600, stoney wrote
>> (in message <e9hv30lvnf6op20liqtlgu184ur1ad85dm.RemoveThis@4ax.com>):
>>
>> > On Wed, 25 Feb 2004 15:58:00 -0500, "ZenIsWhen"
>> > <ZenIsWhen.RemoveThis@anywhere.com>, Message ID:
>> > <103q32dl5ocusb2.RemoveThis@corp.supernews.com> wrote in alt.atheism;
>> >
>> >>
>> >> <buckeye_ELO.RemoveThis@nospam.net> wrote in message
>> >> news:ik1q3055v19pv7s7ufesb703f9bfhmgcv2@4ax.com...
>> >>>
>> >>> US Top Court Upholds Religion Scholarship Ban
>> >>>
>> >> http://wireservice.wired.com/wired/story.asp?section=Breaking&storyId=82556
>> >> 4
>> >> &tw=wn_wire_story
>> >>
>> >> First of all ... I would have used a different header - perhaps one that
>> >> indicates the Constitution was defend AGAINST attacks from the Religious
>> >> Right.
>> >>
>> >> Second ........ this is a quote from the article.........
>> >>
>> >> "
>> >> Scalia wondered what would happen next.
>> >>
>> >> "Will we deny priests and nuns their prescription drug benefits on the
>> >> ground that taxpayers' freedom of conscience forbids medicating the clergy
>> >> at public expense?""
>> >>
>> >>
>> >>
>> >> This is a Supreme Court justice?
>> >>
>> >> This STUPID statement makes him look exactly like the ignorant fanatical
>> >> Reich wing zealots he is supporting!
>> >
>> > That's because Scalia *is* an ignorant fanatical Reich wing zealot.
>> >
>>
>> And that's his /good/ side.
>
>Remember when he tried to justify the death penalty on the
>grounds that for xians, "death is no big deal"?
>
>http://www.commondreams.org/views02/0708-03.htm

Published on Monday, July 8, 2002 in the New York Times
From Justice Scalia, a Chilling Vision of Religion’s Authority in
America
by Sean Wilentz


PRINCETON, N.J. -- Earlier this year Antonin Scalia decided to share
some aspects of his worldview with the public. His inspiration seems to
have been the death penalty: recent debates with his colleagues on the
Supreme Court and his general reflections on the legitimacy of the state
taking to itself the power to kill a citizen. Justice Scalia spoke on
these matters at the University of Chicago Divinity School in January,
beginning with the ritual disclaimer that "my views on the subject have
nothing to do with how I vote in capital cases"; his remarks appeared in
the May issue of First Things: The Journal of Religion and Public Life.
They are supplemented by his dissent to the court's decision on June 20
that mentally retarded people should not be executed. Justice Scalia's
remarks show bitterness against democracy, strong dislike for the
Constitution's approach to religion and eager advocacy for the
submission of the individual to the state. It is a chilling mixture for
an American.

Because Mr. Scalia is on the Supreme Court, and because President Bush
has held him up as an example of judicial greatness, his writings
deserve careful attention.

Mr. Scalia seems to believe strongly that a person's religious faith is
something that he or she (as a Roman Catholic like Mr. Scalia) must take
whole from church doctrine and obey. In his talk in Chicago, Mr. Scalia
noted with relief that the Catholic Church's recent opinion that the
death penalty was very rarely permissible was not "binding" on
Catholics. If it had been, Mr. Scalia said, this teaching would have led
the church to "effectively urge the retirement of Catholics from public
life," given that the federal government and 38 states "believe the
death penalty is sometimes just."

Mr. Scalia apparently believes that Catholics, at least, would be unable
to uphold, as citizens, views that contradict church doctrine. This is
exactly the stereotype of Catholicism as papist mind control that
Catholics have struggled against throughout the modern era and that John
F. Kennedy did so much to overcome. But Mr. Scalia sees submission as
desirable — and possibly the very definition of faith. He quotes St.
Paul, "For there is no power but of God: the powers that be are ordained
of God."

"The Lord," Mr. Scalia explained in Chicago, "repaid — did justice —
through His minister, the state."

This view, according to Mr. Scalia, once represented the consensus "not
just of Christian or religious thought, but of secular thought regarding
the powers of the state." He said, "That consensus has been upset, I
think, by the emergence of democracy." And now, alarmingly, Mr. Scalia
wishes to rally the devout against democracy's errors. "The reaction of
people of faith to this tendency of democracy to obscure the divine
authority behind government should not be resignation to it, but the
resolution to combat it as effectively as possible," he said in Chicago.

Mr. Scalia is right about one thing. Modern democracy did upset the
divine authority of the state. That has usually been considered by
Americans to have been a step forward. The great 17th-century dissenter
Roger Williams declared that government derived no authority whatsoever
from God, but was "merely human and civil." Thomas Jefferson put matters
bluntly in 1779: "[O]ur civil rights have no dependence on our religious
opinions any more than on opinions in physics or geometry."

That view prevailed among the framers at Philadelphia in 1787.
Throughout their debates, even when they prayed for divine guidance,
they rejected the idea that political authority lay with anyone or
anything other than the sovereign people. The only extended discussion
of religion in the Federalist Papers has James Madison listing zeal in
religious opinion as one of "the latent causes of faction" that cause
men "to vex and oppress each other" and that need institutional checks.

There have always been Americans who have thought as Justice Scalia does
now. In 1781 a Massachusetts minister, Jonas Clark, preached that
religion is "the source of liberty, the soul of government and the life
of a people." But ever since the Revolution, this has been a minority
view, even an eccentric one, among Americans. It has had no appreciable
place in our constitutional history because the framers rejected it.

They had many reasons for doing so, not least the factionalism mentioned
by Madison. They had an idea that sovereignty rested with a free people,
even if some among those people didn't believe in God, or in the same
God, or in the same way.

Such a belief in the worth of people independent of religious
considerations (whether their own or those of the state) has
distinguished secular democracy. This seems to irritate Mr. Scalia. It
seems to indicate a humanist egotism that might lead a person to think
individual lives are so valuable that it is not the privilege of the
state to take them. "Indeed, it seems to me," Mr. Scalia said in
Chicago, "that the more Christian a country is the less likely it is to
regard the death penalty as immoral. Abolition has taken its firmest
hold in post-Christian Europe, and has least support in the churchgoing
United States. I attribute that to the fact that for the believing
Christian, death is no big deal."

This might imply that the death penalty would have little deterrent
effect for the faithful. It might also imply that devout Christians have
fewer moral scruples about disregarding the Old Testament's injunction
against killing. ("For the nonbeliever, on the other hand, to deprive a
man of his life is to end his existence," Mr. Scalia said sarcastically.
"What a horrible act!") But that is not quite Mr. Scalia's point. He
wants us to know that Catholics and perhaps other religiously minded
people have the moral sense to hold their own wills as slight things
compared to those of God and His minister, the state — with the partial
exception of judges.

In Chicago, Mr. Scalia argued strenuously that in America a judge who
morally opposed the death penalty ought to resign. "Of course," Mr.
Scalia said, "if he feels strongly enough he can go beyond mere
resignation and lead a political campaign to abolish the death penalty —
and if that fails, lead a revolution."

But leading a revolution would inevitably bring some interference with
the application of laws, not to mention all the other atrocities that
typically attend revolutions. Only a judge could think it better to play
Robespierre than to issue too ambitious an opinion.

One senses that Mr. Scalia's true priority is to get secular humanists
off the federal bench. In his dissent to Atkins v. Virginia, the recent
decision against executing mentally retarded criminals, Mr. Scalia
wrote, "Seldom has an opinion of this Court rested so obviously upon
nothing but the personal views of its members." The ones he had in mind
were not all the members, just the six who disagreed with him. Mr.
Scalia dissents vigorously against them for letting their personal
notions infect the law.

In Chicago Mr. Scalia asserted, not for the first time, that he is a
strict constructionist, taking the Constitution as it is, not as he
might want it to be. Yet he wants to give it a religious sense that is
directly counter to the abundantly expressed wishes of the men who wrote
the Constitution. That is not properly called strict constructionism; it
is opportunism, and it threatens democracy. His defense of his private
prejudices, even if they may occasionally overlap the opinions of
others, should not be mislabeled conservatism. Justice Scalia seeks to
abandon the intent of the Constitution's framers and impose views about
government and divinity that no previous justice, no matter how
conservative, has ever embraced.

Sean Wilentz, co-author of "The Kingdom of Matthias," directs the
American studies program at Princeton.

Copyright 2002 The New York Times Company



Stoney
"Designated Rascal and Rapscallion
and
SCAMPERMEISTER!"

When in doubt, SCAMPER about!
When things are fair, SCAMPER everywhere!
When things are rough, can't SCAMPER enough!
/end humour alert

alt.atheism military veteran #11
{so much for the 'no atheists in foxholes' rubbish}
 >> Stay informed about: Major setback for religious right 

In article <c25stb$2dnu$1@agate.berkeley.edu> magidin RemoveThis @math.berkeley.edu (Arturo Magidin) writes:
<In article <c25fr5$57a$1@oasis.ccit.arizona.edu>,
<Cary Kittrell <cary RemoveThis @afone.as.arizona.edu> wrote:
<>In article <c25fag$28l6$1@agate.berkeley.edu> magidin RemoveThis @math.berkeley.edu (Arturo Magidin) writes:
<><In article <c230mr$odr$1@oasis.ccit.arizona.edu>,
<><Cary Kittrell <cary RemoveThis @afone.as.arizona.edu> wrote:
<><
<>< [.snip.]
<><
<><>Wow. Are you sure you're not really Nina Totenberg in drag? Or
<><>out of drag?
<><
<><I don't know who Nina Totenberg is, so I wouldn't know. (-: I'm sure
<><nobody has seen us at the same time in the same place...
<>
<>Nina Totenberg is one of the original "Uterine Troika", the three
<>women who were the movers and shakers in the early days of
<>National Public Radio. Nina still reports for NPR, and
<>confines herself entirely to the activities of the Supreme Court.
<>When an interesting case is in progress, she'll often read aloud
<>transcripts of the oral arguments.
<
<Weird. I listen to NPR almost daily; I guess it must be on at times
<when I'm at work...
<

Well, she was on today, what the the unsealing of Blackmun's
papers and the SHOCKING REVELATIONS!! which ensued. You
can hear Nina -- and a past interview with Blackmun -- at:

http://www.npr.org/news/specials/blackmun/


-- cary
 >> Stay informed about: Major setback for religious right 

cary.RemoveThis@afone.as.arizona.edu (Cary Kittrell) wrote:


>:|Ah. Even better than my previous approximation to the situation. Things
>:|aren't nearly so scary as I initially feared. Thank you.

The following isn't scary? LOL

Here is some of what I was talking about the other day:

This was posted as a reply to another in another thread but it contains the
info I was talking about that other day:

DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz. Oxford
University Press. (1996) pp. 48-55, 256-62

Professor Bernard Schwartz 1923-1997
http://www.law.utulsa.edu:8080/library/research/schwartz/bio

*******************************************************
Some of the books published by him:
http://www.fetchbook.co.uk/search_Bernard_Schwartz/searchBy_Author.html

*****************************************************

Now to elaborate with some comments from the above pages I mentioned:

Excerpt # 1
When we talk today about the drafting of Supreme Court opinions, we are
dealing with a subject in which there is a sharp difference between
appearance and reality and one which brings us to the controversial
question of the role of the law clerks in the Court's decision process.
Indeed, the use the justices now make of their law clerks means, as the
Times reviewer put it, that "no one knows what, if anything, the Justices
themselves have written."
[page 48]

Excerpt # 2
According to justice Brennan, "Tradition has it that Jeremy Bentham once
remarked that law is not made by judge alone but by Judge and Company." If
he were writing about the Supreme Court today, he would surely include law
clerks in the company. The problem is that the company may, all too
frequently, come to dominate the judge.
[page 49]

Excerpt # 3
The law clerks' role is, however, no longer limited to the writing of
footnotes. When he wrote about the use he made of his law clerks, former
justice Hughes worried that, if the clerks were used too much, "it might be
thought that they were writing our opinions." That, indeed, is what has
happened. In recent years the justices have given their clerks an ever
larger share of responsibility, including even the writing of opinions.
Complaints against the clerks' role have been common, including a
noted 1957 article in U.S. News & World Report by William H. Rehnquist
himself. Rehnquist stated that the justices were delegating substantial
responsibility to their clerks, who "unconsciously" slanted materials to
accord with their own views. . .
[page 50]

Excerpt # 4
An even harsher view of the clerk system was expressed by Philip B.
Kurland, a leading constitutional scholar, a year after Chief Justice
Rehnquist was appointed. As he noted, the law clerks now exercise a major
role in the two most important functions of the Justices: (1) the screening
of cases to determine which the Court will hear and decide; and (2) the
drafting of opinions.
[page 50]

Excerpt # 5
While the justices make the final decision on what certiorari petitions to
grant, the work on the petitions is done by the law clerks. In the vast
majority of cases, the Justices' knowledge of the petitions and the issues
they present is based on the clerks' cert memos, and they normally follow
the recommendations in the memos.
[page 51]

Excerpt # 6
An even more important delegation to the clerks involves the
opinion-writing process itself. "As the years passed," said justice Douglas
in his Autobiography, "it became more evident that the law clerks were
drafting opinions."
[page 51]

Excerpt # 7
Justice Frankfurter himself characteristically expressed doubts about the
working of the law clerk system. "I wonder," he wrote to justice John
Marshall Harlan in 1957, "how many who are reversing out of hand in these
cases have read the record and not relied merely on the memoranda of their
law clerks.
[page 52]

Excerpt # 8
Federal appeals judge Richard A. Posner was even more blunt in a 1985 boot
"What are these able, intelligent, mostly young people doing? Surely not
merely running citations in Shepard's and shelving the judge's law books.
They are, in many situations, `para-judges.' In some instances, it is to be
feared, they are indeed invisible judges, for there are appellate judges
whose literary style appears to change annually."
[page 52]

Excerpt # 9
It is, of course, true that the decisions are made by the Justices-though,
even with regard to them, the weaker justices have abdicated much of their
authority to their clerks.
[page 52]

Excerpt #10
To be sure, the justices themselves go over the drafts, and, said Chief
Justice Rehnquist, "I may revise it in toto." But, he also admits, "I may
leave it relatively unchanged." Too many of the Justices circulate drafts
that are almost wholly the work of their clerks. Some, indeed, do little
more than lend their names to their clerks' product. "These days," a recent
book sums up the situation, "a Court opinion is probably put together by a
clerk, relying mostly on language from earlier opinions.... The clerks
draft most of the majority and dissenting opinions for most of the
justices.
[page 52]
SOURCE: DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz.
Oxford University Press. (1996) pp. 48-55, 256-62


There is plenty I didn't include, including the second referenced section
of the book (pages 356-62 which constinues the topic), but the above gives
you the elaboration I promised and should wet your interest if you are
interested to go buy or chck out the book in question from a local library.
 >> Stay informed about: Major setback for religious right 

Time to rethink all this talk about the clerks at the Supreme Court doing
the work of the justices.

Big in the news of late are the papers of former Justice Harry Blackmun.
Last evening, I watched a report on this on the Lehrer News Hour.
Interviewed were two former clerks for Supreme Court justices.

They affirm what we all assume to be so: it is the justices who write the
opinions that they put their names to, and not their clerks. The clerks do
the research and handle negotiations between the justices, according to the
report. They don't write opinions.

If the clerks were doing the research and writing the opinions, then what in
the world are the justices doing (besides going on hunting trips with their
favorite defendants)?



in article pg3k40tv9qsa7o6oif1pa9hndosov50u1p RemoveThis @4ax.com,
buckeye-ELO RemoveThis @nospam.net at buckeye-ELO RemoveThis @nospam.net wrote on 06 03 2004 9:45:

> cary RemoveThis @afone.as.arizona.edu (Cary Kittrell) wrote:
>
>
>> :|Ah. Even better than my previous approximation to the situation. Things
>> :|aren't nearly so scary as I initially feared. Thank you.
>
> The following isn't scary? LOL
>
> Here is some of what I was talking about the other day:
>
> This was posted as a reply to another in another thread but it contains the
> info I was talking about that other day:
>
> DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz. Oxford
> University Press. (1996) pp. 48-55, 256-62
>
> Professor Bernard Schwartz 1923-1997
> http://www.law.utulsa.edu:8080/library/research/schwartz/bio
>
> *******************************************************
> Some of the books published by him:
> http://www.fetchbook.co.uk/search_Bernard_Schwartz/searchBy_Author.html
>
> *****************************************************
>
> Now to elaborate with some comments from the above pages I mentioned:
>
> Excerpt # 1
> When we talk today about the drafting of Supreme Court opinions, we are
> dealing with a subject in which there is a sharp difference between
> appearance and reality and one which brings us to the controversial
> question of the role of the law clerks in the Court's decision process.
> Indeed, the use the justices now make of their law clerks means, as the
> Times reviewer put it, that "no one knows what, if anything, the Justices
> themselves have written."
> [page 48]
>
> Excerpt # 2
> According to justice Brennan, "Tradition has it that Jeremy Bentham once
> remarked that law is not made by judge alone but by Judge and Company." If
> he were writing about the Supreme Court today, he would surely include law
> clerks in the company. The problem is that the company may, all too
> frequently, come to dominate the judge.
> [page 49]
>
> Excerpt # 3
> The law clerks' role is, however, no longer limited to the writing of
> footnotes. When he wrote about the use he made of his law clerks, former
> justice Hughes worried that, if the clerks were used too much, "it might be
> thought that they were writing our opinions." That, indeed, is what has
> happened. In recent years the justices have given their clerks an ever
> larger share of responsibility, including even the writing of opinions.
> Complaints against the clerks' role have been common, including a
> noted 1957 article in U.S. News & World Report by William H. Rehnquist
> himself. Rehnquist stated that the justices were delegating substantial
> responsibility to their clerks, who "unconsciously" slanted materials to
> accord with their own views. . .
> [page 50]
>
> Excerpt # 4
> An even harsher view of the clerk system was expressed by Philip B.
> Kurland, a leading constitutional scholar, a year after Chief Justice
> Rehnquist was appointed. As he noted, the law clerks now exercise a major
> role in the two most important functions of the Justices: (1) the screening
> of cases to determine which the Court will hear and decide; and (2) the
> drafting of opinions.
> [page 50]
>
> Excerpt # 5
> While the justices make the final decision on what certiorari petitions to
> grant, the work on the petitions is done by the law clerks. In the vast
> majority of cases, the Justices' knowledge of the petitions and the issues
> they present is based on the clerks' cert memos, and they normally follow
> the recommendations in the memos.
> [page 51]
>
> Excerpt # 6
> An even more important delegation to the clerks involves the
> opinion-writing process itself. "As the years passed," said justice Douglas
> in his Autobiography, "it became more evident that the law clerks were
> drafting opinions."
> [page 51]
>
> Excerpt # 7
> Justice Frankfurter himself characteristically expressed doubts about the
> working of the law clerk system. "I wonder," he wrote to justice John
> Marshall Harlan in 1957, "how many who are reversing out of hand in these
> cases have read the record and not relied merely on the memoranda of their
> law clerks.
> [page 52]
>
> Excerpt # 8
> Federal appeals judge Richard A. Posner was even more blunt in a 1985 boot
> "What are these able, intelligent, mostly young people doing? Surely not
> merely running citations in Shepard's and shelving the judge's law books.
> They are, in many situations, `para-judges.' In some instances, it is to be
> feared, they are indeed invisible judges, for there are appellate judges
> whose literary style appears to change annually."
> [page 52]
>
> Excerpt # 9
> It is, of course, true that the decisions are made by the Justices-though,
> even with regard to them, the weaker justices have abdicated much of their
> authority to their clerks.
> [page 52]
>
> Excerpt #10
> To be sure, the justices themselves go over the drafts, and, said Chief
> Justice Rehnquist, "I may revise it in toto." But, he also admits, "I may
> leave it relatively unchanged." Too many of the Justices circulate drafts
> that are almost wholly the work of their clerks. Some, indeed, do little
> more than lend their names to their clerks' product. "These days," a recent
> book sums up the situation, "a Court opinion is probably put together by a
> clerk, relying mostly on language from earlier opinions.... The clerks
> draft most of the majority and dissenting opinions for most of the
> justices.
> [page 52]
> SOURCE: DECISION, How the Supreme Court Decides Cases, By Bernard Schwartz.
> Oxford University Press. (1996) pp. 48-55, 256-62
>
>
> There is plenty I didn't include, including the second referenced section
> of the book (pages 356-62 which constinues the topic), but the above gives
> you the elaboration I promised and should wet your interest if you are
> interested to go buy or chck out the book in question from a local library.
 >> Stay informed about: Major setback for religious right