Does anyone actually trust the Supreme Court?

[Scheavo]

https://www.nytimes.com/2012/04/03/us/justices-approve-strip-searches-for-any-offense.html

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

...
 
The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence’s arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)
 

I also heard that Florence had a notarized note explaining that the fine had been paid, and that there shouldn't be a warrant out for his arrest, and the cop didn't care.


Does anyone actually trust this institution to come to a reasonable conclusion? Do conservatives agree with the "conservative" judges? At what point do we just impeach the entire fucking Court, and start over?

[j]

Definitely wouldn't say I "trust" it, but IMO it is far and away the least problematic of the three branches of US government.  Which isn't saying a whole lot, I suppose.  Also doesn't help that its members are determined by the other two branches.

-J

[PraXis]

I would trust the SCOTUS if all of its members were strict Constitutionalists... since they're supposed to uphold the Constitution..the law of the land. With the constant attacks on the 1st, 2nd, and 4th amendments by the legislative and executive branches, the SCOTUS is more important now than ever.

[skydivingninja]

The thing with SCOTUS is that its job is to INTERPRET the constitution, and there are many different ways to interpret it.  Take the second amendment, what one redneck claims is his right to bear arms is a scraggly-haired FM type's claim that only people in organized, regulated militias can have guns.

As for the issue of trusting SCOTUS, they certainly haven't made the best choices lately, but then again neither has anyone in Washington DC.   I think the concept is a solid one, just needs a bit more tweaking, maybe to allow a bit more leeway in the constitution.  Nothing wrong with letting a 200-year-old document change with the times. 

[El Barto]

I'm not fully versed in Florence, but I can understand their reasoning.  Once a person is admitted to a jail, you have to let the jailers do their thing.  The problem seems to me that he shouldn't have been admitted in the first place, and in that event, the strip search is probably going to add another zero to his civil suit against the county.  Not too shabby.

As for the SCOUTS in general, I trust most of them.  I think the judicial activism/strict constructionist labels are bullshit; buzzwords thrown around by people who disagree with a decision handed down.  I really think that most of them have a great deal of respect for the position they're in and take it quite seriously.  If they vote for something that I think is wrong, I tend to think it's because they're misguided, rather than crooked. 

The thing that gives me the most trouble with the court was Bush v. Gore.  I think we can all agree that the recount as Florida were carrying it out was unconstitutional, but deciding that there could be no attempt to rectify it in the month before the deadline was bullshit.  That went far beyond judicial review, IMO.  SDO was the one I faulted the most for that one.  I think she just wanted to facilitate her retirement.

As for the individual justices, Scalia is the one that troubles me the most.  For all the talk we hear about how brilliant he is, and he is a sharp mo'fucker, he's the one that seems most likely to vote for ideology rather than law.  The Obamacare cases will be pretty interesting for him, and I'm not entirely sure how he'll decide.  What I do know is that Raich pretty much painted him into a corner.  It was kind of a leap for him, and if he shoots down Obamacare after upholding Raich, he's really going to look like wildman. 

[antigoon]

You're right about Scalia, Barto, but I just can't see him, no way in hell, upholding this law. Even after Raich. He's smart enough to be able to weasel out of that one.

Anyway, for whatever reason I have a great deal of respect for all of the justices. I also think the preliminary cries of judicial activism are misguided at best. The conservative justices are not always about deference to the legislature. If you read some of the big eminent domain cases, they're the ones standing up for the little guy and voting to stop the government from taking action. So it's definitely not as cut and dry as the President would make it seem.

Have you heard to any of the arguments from last week? I heard the two hours on the individual mandate and Paul Clement, who has to be one of the best appellate advocates ever, made the Solicitor General look like an imbecile. How a SG of the United States could not plainly articulate a limiting principle to the Commerce Clause should the Court uphold the law was really astonishing to me.

[El Barto]

Haven't head any of the recent arguments.  Strangely, I'm not sure I care enough to bother.  The only opposition I really have to it's repeal is having to hear a bunch of uninformed bullshit from the Republicans on the matter.

As for Scalia, if I had to bet on it, I'd say you're right.  He'll probably proffer up some "more nuanced interpretation" of commerce that allows him to vote against it.  Still, I wouldn't like having to bet on that guy's decision.  He does have a track record of giving wide deference to Wickard.  If he keeps this in the realm of interstate commerce, I can certainly see him upholding it. 

[Scheavo]

I'm not fully versed in Florence, but I can understand their reasoning.  Once a person is admitted to a jail, you have to let the jailers do their thing.  The problem seems to me that he shouldn't have been admitted in the first place, and in that event, the strip search is probably going to add another zero to his civil suit against the county.  Not too shabby.

Considering you're position about psychological effects of power, this surprises me. I think there's the looming question of race over this entire thing as well; would a white person have been arrested? If so, would a white man have been stripped searched twice? I cant' help but think there's an element of racism, and that by saying jailers can do whatever they want to ensure "safety" pretty much means they have a carte blanche to be a racist as they want. There's no need for probable cause, no need for anything other than, "I don't like this guy." It's bullshit, especially when you get stripped searched before you ever get a court hearing, or anything resembling due process.

As for the SCOUTS in general, I trust most of them.  I think the judicial activism/strict constructionist labels are bullshit; buzzwords thrown around by people who disagree with a decision handed down.

I'm not sure it's necessarily about each individual member, but the aggregate whole. When there's basically nothing but 5-4 decisions, split directly upon ideological grounds, you have a problem with your court system. Especially when many of those 5-4 decisions overturn decades of law, practices and when even more of them strike the average person as just wrong.

[antigoon]

It's near impossible to take ideology out of the equation, though, especially in a court of last resort. The nature of a lot of the issues that reach the Supreme Court are such that there obviously aren't clear answers. How would you fix that?

[El Barto]

Again, not real familiar with Florence.  Insofar as your description goes, though, I'd say there are two different elements here.  The problem is the arrest itself, not what followed afterward.  I'm very aware that there's a problematic distinction between being arrested and being guilty.  A person merely accused shouldn't have his fingerprints, and now DNA sample, cataloged.  A person merely accused shouldn't be thrown in with real bad people.  I'm just not sure there's any valid way to deal with this.  That's why I'm completely in favor of civil suits for false arrests.  I'd also say that The Man should have to destroy the fingerprints/DNA, but that'll never happen.

As for the court as a whole, yeah, I agree with you.  It's clearly become far too politicized.  Again, not sure what can be done about it.  My opinion is that our whole system is shot to hell and should be scrapped.  SCOTUS is no exception.  Though to be fair, most cases aren't decided down party lines.  With the exception of Thomas, all of them actually vote off their ideology fairly regularly. 

[Scheavo]

It's near impossible to take ideology out of the equation, though, especially in a court of last resort. The nature of a lot of the issues that reach the Supreme Court are such that there obviously aren't clear answers. How would you fix that?

I don't want to imply that any court has to reach unanimous decision all the time, it just seems that our court now, specifically, is far too political, ideological and not very objectively judicial.

Again, not real familiar with Florence.  Insofar as your description goes, though, I'd say there are two different elements here.  The problem is the arrest itself, not what followed afterward.  I'm very aware that there's a problematic distinction between being arrested and being guilty.  A person merely accused shouldn't have his fingerprints, and now DNA sample, cataloged.  A person merely accused shouldn't be thrown in with real bad people.  I'm just not sure there's any valid way to deal with this.  That's why I'm completely in favor of civil suits for false arrests.  I'd also say that The Man should have to destroy the fingerprints/DNA, but that'll never happen.

I still don't see why the state should be allowed to strip search any individual it wants. There needs to be strong, good reasons for such an invasive search. I don't see how even a convicted criminal loses his right to basis human dignity.

[El Barto]

The state can't strip search anybody it wants.  It can strip search people it arrests, and if there's no cause for the arrest it get's sued. 

[Scheavo]

The state can't strip search anybody it wants.  It can strip search people it arrests, and if there's no cause for the arrest it get's sued.

The "anybody it wants," was in context. I don't see how being in jail waves all your rights as a human being, and I especially don't see how it's acceptable before even seeing a judge. Cop can arrest you for some minor offense, or because he feels like being a dick, strip search you, than probably just get fired, while the taxpayers are left to pay the bill.

[El Barto]

An interesting philosophy you'll occasionally see in SCOTUS judgements is that you can't really legislate against crooked cops.  You can provide recourse, but laws have to work on the assumption that Johnny will be on the right side.  Sure, an asshole cop can make your life miserable, but there are tons of ways that can happen and you really can't go legislating against every possible scenario.  A cop who's willing to lose his job to be a dick isn't going to worry too much about the decision of the court.

Consider The Man's interest in keeping drugs out of his jails.  That has to occur at the front gate.  If you're not allowed to check people before tossing them into their cage for the weekend, then you've lost that war.  You'll have people getting themselves arrested for trivial matters, getting the VIP treatment for a few days before their arraignment, and cashing a large check when they get out; the reward for delivering an Oz of cola and a couple of sheets of fry.  Piece of cake.

Again, I'm right there with you that people who are only accused of a crime shouldn't be treated like criminals.  I'm just not sure how you can reasonably prevent it. 

[Scheavo]

Again, I'm right there with you that people who are only accused of a crime shouldn't be treated like criminals.  I'm just not sure how you can reasonably prevent it.

Stop the bullshit war on drugs, which would massively reduce our prison population, and easing up demands upon the court system.

At least require that there's a different jail (or is jail the correct term?) for minor instances and before you see a judge. That way, people can't intentionally get thrown in for something minor to smuggle in drugs, and the whole issue is avoided.

If the Supreme Court said that strip searches needed more backing for them to occur, then you'd see the prison system adjust to this reality.

[rumborak]

I think the real issue is that the SCOTUS has become the battle ground for the cultural war that's going on inside the US. Germany has something very similar to a SCOTUS that checks new laws against the constitution etc., but far less ends up in their hands, most stuff gets agreed on in parliament.

rumborak

[Scheavo]

https://www.thedailyshow.com/watch/tue-april-3-2012/exclusive---tom-goldstein-extended-interview-pt--1


Fairly good discussion regarding the insanity of this situation.

[El Barto]

Not a great interview, but he was a pretty insightful guy.  I still disagree about Florence, although the facts are certainly unfortunate.  At the end of the day, the problem was with the bullshit arrest, not what happened to him at the jail.

I'm curious how Obama runs against the court.  I still don't think any of the justices are in play.  Ginsburg won't be around much longer regardless, and the rest of them will outlast Obama's second term.  I suspect Thomas wants out, but he won't do it under a Democratic president.  The rest are there for ages. 

[antigoon]

I saw a recent Q&A with Thomas at some law school. He said he has no plans of leaving any time soon.

[Scheavo]

Not a great interview, but he was a pretty insightful guy.  I still disagree about Florence, although the facts are certainly unfortunate.  At the end of the day, the problem was with the bullshit arrest, not what happened to him at the jail.

I just don't get how you justify strip searching anyone, based upon nothing. I'm still even more amazed that you're defending that decision. I mean, the logic is clearly wrong if applied to the general population, so why does someone who get's arrested for something simple like not paying a small fine lose all of his rights to human dignity?

I'm curious how Obama runs against the court.  I still don't think any of the justices are in play.  Ginsburg won't be around much longer regardless, and the rest of them will outlast Obama's second term.  I suspect Thomas wants out, but he won't do it under a Democratic president.  The rest are there for ages.

Two things, running against the court means keep me in office so I can get this right. An individual mandate may be unconstitutional (and I'm actually pretty much in agreement that it's a stretch), but providing health care is not. We still have Medicare and Social Security, so instead of mandating individuals we simply DO make it part of the tax code, and basically expand the Medicare system. Or perhaps a public option, even. There's a variety of thigns Obama can come back with on health care, which Republicans don't really have an answer for. Their answer was an individual mandate.

Second thing is, judges are in for good behavior. Do we honestly want to be so naive as to think the Supreme Court isn't corruptible? Thomas especially deserves a thorough investigation, possibly impeachment. Obama could theoretically make that a big issue, trying to spur support for Democrats in Congress to go through with the impeachment process, or build pressure against Republicans to support an investigation.

[El Barto]

For one thing, "losing all rights to human dignity" is a bit of a stretch.  If I had to spend 36 hours in a cell, listening to hip-hop, watching Sally Jesse Raphael and eating bologna on wonder bread every day, the search on the way in would probably be the least of my concerns. The price I pay for living in Dallas is that if I get tossed into the CJ system, it'll take longer to get out.  If I get busted in Mesquite, or Irving, or Duncanville, or almost any other place in DFW, none of this is a factor. 

An interesting aside, if he wasn't driving, and he knew from experience they'd give him shit about a previous warrant, why'd he even identify himself in the first place?  New Jersey has no stop and identify statute.  "Sir, I'm under no legal obligation to identify myself to you, unless you have probable cause to suspect me of committing a crime."


Fixing his healthcare debacle is fine, but I wouldn't really call that running against the court.  The court itself is something he can't fix.  And the impeachment notion will never happen, and probably shouldn't.  I think that's a line that, once crossed, would make it nearly impossible for the court to function.  Thomas might well be dirty, and if something far more concrete comes out, then hell yeah.  What you don't want to do is go after when the interpretation is that you just don't like his decisions. 

[antigoon]

If the Court overturns Obamacare, at least we'd have another shot at getting healthcare right. I also think it would be disastrous for Obama to run against the Court. I took a course in undergrad on SCOTUS and we looked at a bunch of studies that showed that even after decisions like Bush v. Gore its approval among Americans has been consistently ridiculously high.



Also, lol:

[bosk1]

I also think it would be disastrous for Obama to run against the Court.

Well, he has said at least twice this week that it would be, in his words, "unprecedented" for a federal court to overturn a piece of federal legislation that was approved in both houses.  Maybe it's just me, but tossing out about 150+ cases of "precedent" is about as close to just outright thumbing your nose at the judicial branch as you can get. 

[El Barto]

I also think it would be disastrous for Obama to run against the Court.

Well, he has said at least twice this week that it would be, in his words, "unprecedented" for a federal court to overturn a piece of federal legislation that was approved in both houses.  Maybe it's just me, but tossing out about 150+ cases of "precedent" is about as close to just outright thumbing your nose at the judicial branch as you can get. 

Could you elaborate on that?  Not sure what you mean.

As for Obama's remarks, pretty stupid.  If his point was that it would be an example of the judicial activism that Republicans are always bitching and moaning about, then he's right, but it's hardly unprecedented.  And as a fan of Marbury, I think things are as they should be, and his whining about it just makes him look like a weasel (particularly considering his background in constitutional law). 

[bosk1]

I also think it would be disastrous for Obama to run against the Court.

Well, he has said at least twice this week that it would be, in his words, "unprecedented" for a federal court to overturn a piece of federal legislation that was approved in both houses.  Maybe it's just me, but tossing out about 150+ cases of "precedent" is about as close to just outright thumbing your nose at the judicial branch as you can get. 

Could you elaborate on that?  Not sure what you mean.

As for Obama's remarks, pretty stupid.  If his point was that it would be an example of the judicial activism that Republicans are always bitching and moaning about, then he's right, but it's hardly unprecedented.  And as a fan of Marbury, I think things are as they should be, and his whining about it just makes him look like a weasel (particularly considering his background in constitutional law). 

What I mean is, he said twice (could have been more, but I only heard the two clips--the first where he initially said it would be unprecedented, and the second from the next day where he tried to explain it, and after fumbling for about six minutes, dug himself in even deeper) that it would be "unprecedented" for a court to overturn a piece of federal legislation that was approved by a majority on both houses (which is...uh...exactly how all federal legislation is approved).  But it is not, in fact, unprecedented.  It is precisely what the Court's job is if it believes the legislation does not pass constitutional muster, which, as you pointed out, was first articulated in Marbury.  And since that time, there have been over 150 cases¹ doing that very thing, and doing it specifically in the context of commerce clause analysis.  Does that make more sense?


^1.  I heard it was 150, but have not independently verified that number because there is no easy way to do so.  I apologize if it turns out the number is inaccurate.  But it is largely inconsequential whether the number is 150, 15, or somewhere in between.  The point is, as Obama, the former lawyer and law professor is fully aware, there is more than two centuries worth of precedent for what he is calling "unprecedented" merely to stir up support by members of the public who don't know better.

If his point was that it would be an example of the judicial activism that Republicans are always bitching and moaning about, then he's right, but it's hardly unprecedented.

If that was what he meant and he didn't have the background to know better, I could almost give him a pass.  But he does know better, and there is nothing in the context of his speeches to indicate that that's where he was going.

[El Barto]

OK.  I agree on all points, I just wasn't familiar with 150, or what it's significance was in your post.

And I thought there was something in one of those statements referring to it as the aforementioned judicial activism.  Might have been when one of his minions were clarifying his remarks.

Out of curiosity, aren't you opposed to judicial review?

[bosk1]

And I thought there was something in one of those statements referring to it as the aforementioned judicial activism.  Might have been when one of his minions were clarifying his remarks.

Yeah, could be.

Out of curiosity, aren't you opposed to judicial review?

What?  No!  Have I given off that impression?  Sorry if I have, but no, I'm not opposed to it. 

[El Barto]

Not sure, which is why I asked.  I know the topic came up a few months ago, but I don't recall if you chimed in.  I was probably just reading that from your general conservative leanings.  You like the right wing justices and despise the leftward ones, so I likely just inferred your position from that.  I suspect Marbury would have come down to a party-line vote in today's court.

[Scheavo]

For one thing, "losing all rights to human dignity" is a bit of a stretch.  If I had to spend 36 hours in a cell, listening to hip-hop, watching Sally Jesse Raphael and eating bologna on wonder bread every day, the search on the way in would probably be the least of my concerns. The price I pay for living in Dallas is that if I get tossed into the CJ system, it'll take longer to get out.  If I get busted in Mesquite, or Irving, or Duncanville, or almost any other place in DFW, none of this is a factor. 

An interesting aside, if he wasn't driving, and he knew from experience they'd give him shit about a previous warrant, why'd he even identify himself in the first place?  New Jersey has no stop and identify statute.  "Sir, I'm under no legal obligation to identify myself to you, unless you have probable cause to suspect me of committing a crime."

You're still not giving me a reason why someone arrested for a traffic violation should be stripped search. Where's the justification? Where's the reasoning? There is none, except some paranoid fear of anyone and everyone trying to bring a weapon or drugs into a prison system. Even if you want to justify the first strip search, what justifies the second strip search? He somehow got drugs and weapons once in jail, knowing somehow that he would be transferred to another prison? I mean, what the fuck?

Who was the car registered to? If there's a warrant out of your arrest, and they pull over a car registered to you, and there's a guy in the passenger seat who looks like he could be the guy, wouldn't it then become more his jurisdiction to identify the person? Also, as you are well aware, not having to identify yourself is not nearly the same thing as it being smart to not identify yourself. He was probably also smart enough to know he'd be harassed if he ID himself, and seeing as how he had a notorized form showing that the warrant was false, he probably figured he didn't have anything to worry about. Easier for him to identify himself, show the piece of paper showing its all a mistake, and get on with his day. 

Fixing his healthcare debacle is fine, but I wouldn't really call that running against the court.  The court itself is something he can't fix.  And the impeachment notion will never happen, and probably shouldn't.  I think that's a line that, once crossed, would make it nearly impossible for the court to function.  Thomas might well be dirty, and if something far more concrete comes out, then hell yeah.  What you don't want to do is go after when the interpretation is that you just don't like his decisions.

I never said we should impeach Kennedy, Thomas or anyone like that, now did I? There's more than enough dirt on Thomas to warrant an investigation, and Scalia isn't too far behind him. This is part of the Constitution, we are supposed to kick out our judges when they aren't acting upon good behavior. The dangerous precedent, if you ask me, is to basically have enough evidence of corruption in our government, and to let it pass.

[bosk1]

I suspect Marbury would have come down to a party-line vote in today's court.

Interesting thought, but I'm not so sure.  I think even the right-leaning justices are very much in favor of judicial review.  At least, most of them.  I think, at worst, you'd get a 6-3 majority in favor of judicial review, and even that is a worst case scenario in my mind.

[antigoon]

I also think it would be disastrous for Obama to run against the Court.

Well, he has said at least twice this week that it would be, in his words, "unprecedented" for a federal court to overturn a piece of federal legislation that was approved in both houses.  Maybe it's just me, but tossing out about 150+ cases of "precedent" is about as close to just outright thumbing your nose at the judicial branch as you can get. 

Oh, I agree. I think what he said wad idiotic, especially given his background. It will certainly be interesting to see how he responds if the Court does overturn the Act, and I have to admit I do have some morbid curiosity about that. 

[El Barto]

You're still not giving me a reason why someone arrested for a traffic violation should be stripped search.

I don't think that someone arrested for a traffic violation (or failure to appear, as it is with this case) should be strip searched.  I think that somebody who's going to have to be introduced to the general population of prisoners might need to be.  This is two very different conditions. 

Whether or not you actually see the inside of a jail varies based on what you're suspected of, how long it'll take to arraign you, and whether or not there's room in the jail for you.  Like I said, most people who get busted down here aren't subjected to that because they get processed and turned around without any sitting around. My trip through the CJ department of North Richland Hills, Tx, took less than two hours.  If you get busted at 2200 on a Friday night, you're going to be sitting around until Monday morning, and the amount of security that you're subjected to will likely be greater.

And you keep pointing out that it was only for a ticket.  That's misleading.  It was for failure to appear (the fact that the cops were mistaken isn't relevant to the fundamental issue).  I know tons of people who've gotten hitched up for failure to appear warrants; it's commonplace down here.  The whole point is that you've forfeited the right to be turned loose on your own recognizance.  You've given the man every right to want to keep hold of you, and that requires keeping you in a cell.  If you don't pay your tickets, and even though he eventually did, he clearly let them go to warrant status at one point, you're going to wind up sitting in jail until things get cleared up.  At that point, you're subject to the precautions that your captors want to take.

I'll reiterate that I'm troubled by people who're only accused being treated as if they're guilty.  I just don't think that it's outright unreasonable, and it usually doesn't work out that way, anyway.

[slycordinator]

On the Obama 'unprecedented' statement, he later apparently explained that he meant it to be that it would be unprecedented for the Supreme Court to rule on matters of the Commerce Clause, since they have deferred to Congress on these matters for the past 85 years.

On the other hand, that's ignoring that it's absolutely precedented for the courts to go against prior precedent.

[bosk1]

On the Obama 'unprecedented' statement, he later apparently explained that he meant it to be that it would be unprecedented for the Supreme Court to rule on matters of the Commerce Clause, since they have deferred to Congress on these matters for the past 85 years.

Except that "they have deferred to Congress" is extremely misleading.  The court (and lower federal courts) has ruled that congress overstepped its authority under the commerce clause at least twice since the 1990's (U.S. v. Lopez and U.S. v. Morrison).  Yes, there is some deference, but it is not unlimited by any stretch, and merely saying "the court defers to Congress" without stating that the deference is limited and instead saying, to the contrary, that not deferring to congress would be unprecedented, is flat-out dishonest. 

[El Barto]

Not up on Morrison, but Lopez was such a reach that it really shouldn't have even been construed as a commerce issue.  In matters that actually do apply to interstate commerce, and this clearly does, the court does tend to give a great deal of deference to it.  That's why I'm unsure how they'll decide on this.  I disagree with Wickard, as I'm sure most of them do, but it's there and it isn't gong away.  That being the case, they're content to give Uncle Sammy a helluva lot of power because of it.

And for the record, I don't think that's what Obama said or meant.