More Atrocities from the Supreme court

I am just now learning that on Thursday the Supreme Court issued a ruling that limits Miranda rights. Thursday was the same day they struck down New York’s concealed carry law, which of course got all the headlines. In a normal world, however, a change to Miranda would have been huge news.

The Miranda case was Vega v. Tekoh. The decision did not eliminate the Miranda rule outright, but it seems to me that it does eliminate it in effect. As Justice Kagan explained in her dissent, defendants now have no way to seek remedy if an un-Mirandized statement is used against them in court. Law enforcement cannot be sued for failing to respect Miranda. A court still is not supposed to use a statement obtained by abuse of the defendant without a lawyer present, but if it does, well, tough.

Kagan wrote,

“Today, the Court strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda. The majority observes that defendants may still seek ‘the suppression at trial of statements obtained’ in violation of Miranda’s procedures. But sometimes, such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? The point of § 1983 is to provide such redress—because a remedy ‘is a vital component of any scheme for vindicating cherished constitutional guarantees.’ The majority here, as elsewhere, injures the right by denying the remedy.”

I’m guessing that stripping Miranda of teeth is something from the Federalist Society’s wish list.

Still to come: In a decision that could be issued this coming week, SCOTUS is expected to put limits on the ability of the EPA to limit carbon emissions at power plants. And that’s possibly not all.

Legal experts are waiting to see if the ruling in West Virginia v. EPA begins to chip away at the ability of federal agencies — all of them, not just EPA — to write and enforce regulations. It would foreshadow a power shift with profound consequences, not just for climate policy but virtually everything the executive branch does, from directing air traffic to protecting investors.

Imagine. The SCOTUS would be weakening government from doing much of anything that protects citizens. It’s as if we are not supposed to be able to govern ourselves. We’re living in an imperium per iudices, I tell you.

So at a time when gun violence is a huge national concern, SCOTUS limits the government’s powers to regulate firearms. When climate change threatens to destroy the planet, SCOTUS is expected to limit the government’s powers to reduce greenhouse gases. Let’s hope they don’t do that, but we’ll see. It seems we’re not allowed to use our government to address 21st century problems

Back in 2010 I wrote a post titled Constitutional Trial and Error that argued for a living Constitution, not a dead one. The Founding Fathers gave us an outline of government that succeeding generations could apply to their own circumstances to govern themselves, I said. And making the Constitution work in the real world involved a lot of trial and error even in the early years of our republic, when the guys who wrote it were still alive. The Constitution didn’t explicitly give government power to do a lot of things it does now, like build highways and print paper money. It didn’t even explicitly say the Supreme Court was the final arbiter of what the Constitution meant; that came about through the Marbury case in 1803, and the notion didn’t completely take hold until much later in the 19th century, Eventually people figured out what worked and what didn’t, and precedents developed.

When the Constitution was written there were no railroads, no airlines, no energy grid, no Internet, no such thing as outsourced jobs, and people didn’t know what germs were. Yet the “originalists” on the Court insist we are limited to addressing only conditions that existed in the 18th century? See my 2020 post on Originalism, A Tyranny of the Dead.

In fact, the Originalists are crappy historians. Do see The Supreme Court’s Faux ‘Originalism’ by Joshua Zeitz at Politico; it’s excellent. The Court’s decisions on firearm rights from Heller (2006) on are based on historical ignorance. The right to bear arms was very much tied to service in the militia, which from the Colonial period and through the time of the Articles of Confederation and in the early constitutional republic was the main defense from invasion and insurrection.

At the time the Constitution was written the entire U.S. regular military consisted of a standing army of maybe 600 officers and men and a naval fleet of six wooden frigates. And it had a huge territory to defend. Were it not for the buffer created by the Atlantic Ocean just about any European power could have crushed us. The militia was created by Congress under the authority given it in the Constitution (Aticle I, Section 8, clauses 15 and 16) to provide defense. And it really was well regulated. It wasn’t just any collection of meatballs wearing camo and waving assault weapons around. Per the Militia Acts passed in 1792 all white men between the ages of 18 and 45 were required to enroll in the militia, and they were also required to obtain and maintain their own regulation arms so they would be ready to fight. If you know this, the militia clause in the 2nd Amendment makes some sense. Obviously, if someone could stop citizens from being armed, this would weaken the millitia.

And since the militia eventually became the National Guard, which is not self-armed, one could argue that the 2nd Amendment no longer serves its original purpose. But the current “originalist” justices ignore the militia clause and the history behind it and just go right to “shall not be infringed.”

Likewise, per English common law of the time, abortions were legal in the American Colonies until the time of quickening, which is when the fetus can be felt moving. This is roughly at 12 to 15 weeks gestation, although it could be much later. But Justice Alito completely ignores this bit of history and instead takes his legal precedence from some 17th century guy who sentenced witches to be burned at the stake to argue that abortion was never part of U.S. history or tradition, so it can’t possibly be a protected right.

We’re living in an imperium per iudices, and the iudices are wackjobs.

An 18th century trial.


8 thoughts on “More Atrocities from the Supreme court

  1. The SCOTUS would be weakening government from doing much of anything that protects citizens.

    Rest assured that the Roberts Court will continue to protect the 'corporate citizens' they created. 

    What is the 'originalist' argument for giving personhood/citizenship to corporations? 

  2. But maha, the Sicko Psycho Six "Whackjobs" are trying to do their job as they see it, and as they've been instructed to do it.

    They are trying to recreate this country legally, and take it back to some mythical, "originalist" ideal – one that never was.

    What it seems these 6 whackjobs want, is for only white men with property/money to vote, and/or run for office.  And they should have the freedom to shoot whoever they want – without any nasty repercussions, of course!

    Women and minorities have wasted upwards of 150+ years of the SC's time to deal with their issues.  

    Who cares?!?  Not the "original" writers and signers of our US Constitution.

    And recently, they've had to waste some more time on abortion.  And soon, they-ll have to tackle  contraception, and "Gay marriage?!?!?!?!?"

    "Gay Marriage?"

    The'll try to tell there were NO Gay people in the 18th & 19th Centuries!

    Here's their goal:  "BACK to the Future!"

    Too bad that title's already been used.  It would be perfect for what the SCOTUS it trying to force on our country!


  3. I really got to go with OldVet – there is nothing "originalist" about this court. The Federalist Society, in terms of values, is totally invested in protecting big money. The corporate shield, in their future decisions,  will become absolute. Low taxes for corporations and the ultra-rich, gut the power of agencies to enforce the law (environmental – employment – liability) Criminal law will apply to citizens, and be levied against minorities. 

    But what gives with Miranda and gun safety? The Court is trying to protect its own existence from the recoil that's possible when they hand down a succession of unpopular decisions. The Court wants and needs shock troops who will violently defend institutions from voters. (Hitler did not rely on police or soldiers in his rise to power. Organized citizen mobs propelled him to power – those who opposed Hitler through regular channels – media and in government – were silenced by intimidation or murder.) 

    If I'm right, this court will allow every form of voter suppression, including armed "poll watchers" questioning minorities. Despicable tactics I thought I'd never see again in my lifetime (after the civil rights movement) are back with a new twist – the USSC will back implied threats but allow prosecution of overt violence. The metric will be this: you can hang a noose to intimidate, but you've crossed a line if you put a person's head in it. Intimidation (by Republicans) will be allowed as free speech – if liberals want to vote, they will have to want it badly enough to run the gauntlet of angry white men with guns exercising their right to brandish arms against minorities on election day.

    I'm not sure to what degree I'm being overly dramatic. 

    I understand that Biden has ruled out expanding the court – for that reason alone, he must be primaried out. The issue of expanding the court needs to be a litmus test in EVERY federal primary. Pro-choice must equal expand the court. Otherwise, they are condemning women to incubator status for decades. 

    ALL of this comes down to big money – and big money in politics. Guns, gay rights, and abortion are hot-button issues that keeps people in power who will defend big money. There are Democrats just as eager to take corporate money – none of them are eager to expand the court because a liberal court will almost certainly limit corporate power and influence.

    • I'm with Doug.  Underneath the particulars which are outrageous to sensible citizens (and "owning the libs") lies a more sinister purpose, which is to destroy the constitutional power of the general populace to control or at least influence their government and replace it with a malevolent structure which institutionalizes the control of the government by a faction.  The faction is not the R party, which is but a tool of the faction.  The faction is the rich and powerful, a small elite using the ins-and-outs of governmental law the twist the government system created by the founders into a corrupt entrenchment of the wealthiest in power.  Call it oligarchy, call it kleptocracy, call it autocratic, doesn't matter. It is the goal of the worldwide movement to undermine democratic republics, funded by worshipers of Mammon who want no restrictions on their greed. We are on a path to becoming a copy of Russia / Hungary / Turkey, and it is very depressing.  The faction dresses itself in the clothes of the 1776 revolutionaries when they are in fact the opposite, but their propaganda operation is very successful in convincing their supporters.      

  4. Biden declaring with finality, through his spokesperson, that he's against expanding the court is very troubling.  I understand he's a traditionalist, and we knew that when we voted for him, but we are in non traditional times. There was nothing traditional about how we got to a partisan, far right extremist court, and the rulings they've issued in the last week.  Forget about "progress," for now, we're in a situation where we need to be focused on protecting constitutional rights from an extremist court.  And there are non-traditional, but legal and precedented ways to do that, by expanding the court.

    If Biden insists on a rigid adherence to traditionalism then as the leader of the party he needs to say more than just "no" to the best option there is, simply because its non traditional.  Empty happy talk about about "bipartisanship" with our "friends across the aisle" and he knows there are rational republicans will only serve to demoralize voters we need mobilized right now.

    I think Biden deserves to decide if he's going to run in 2024, and not be primaried. But we deserve a leader who's willing to step up and step outside the box to meet the challenge.  So far he's shown he's not up to the challenge of leading the party against a republican party that's using every untraditional trick in the book and willing to sidestep the constitution thanks to a partisan supreme court to destroy democracy and cement minority rule for decades to come.  That should be an treated as an existential threat that calls for more than throwback sentimentalist leadership

  5. I'm not sure to what degree I'm being overly dramatic.

    Considering the current composition of the Supreme Court the term overly dramatic when applied to the idea of trying to anticipate what kind of rulings to expect just doesn't apply. There is no longer any gauge of  judicial consistency or stabilty coming from this radical court. As pointed out in the dissenting opinion in overturning Roe, it's been made clear we are no longer a nation held together by the rule of law, but rather we are now governed by the desire of men. Women have been relegated to the status of a brood animal. Sorry, ladies, we all lose in some respect as a result of the courts descision to extinguish a right, but you have suffered the greatest loss in the court's denial of your own autonomy.

    I think that statement might seem a little overly dramatic in itself, but when you have a court that can depart from the guiding principle of equal justice under law solely to serve their own personal religious beliefs and exercise the power entrusted to them without humility or restraint*…you've got a problem. In wrestling with that problem the things that at one time seemed inconceivable are now a real possibily, so to entertain any possiblity is not being overly dramatic.

    *What we're seeing now from the Supreme Court is the same corrupt spirit that drives Donald Trump. Power corrupts, and absolute power corrupts absolutely!

  6. Border patrol can assault you within 100 miles of border and you can't sue.

    White men can have all their guns unconcealed unlicensed to intimidate and bully and like Rittenhouse kill whoever they say threatened their safety. 

    No more miranda rights.

    You have to pay taxes for religious schools and school officials can demand participation in their prayers not yours.

    Government can't regulate to protect food air water products safety anywhere.

     Oh and reproductive rights forget that. Every female age whatever on up better use birth control before that disappears just as defensive measure.

    Just call the court the walking dead. Party like it is 1750.

  7. Really i wonder, if gun owners can carry their guns everywhere, what about other things. Can i openly carry a knife or axe everywhere i go ? Who said "armed" is only a gun?

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