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February 1, 2006
Unenumerated Penumberas Eminating From A Bench
Con Law: If you have background, you start to become even more disturbed. This is what I am finding. It's all peach cobbler that we look up to the bench as some awesome force in our democracy. But the bench is troubling, and it's not just the new justice or the new chief justice I speak of.
I lose more respect for the jurisprudence of Rehnquist everyday and gain a grunging understanding of Scalia's consistancy. (save his total bullshit waivers on state's rights to suit his needs, RE: GLOCKSBURG and three weeks ago, OREGON V GONZALES.) That's not to say I agree with Scalia; HAMDI is the only case thus far. But footnote 6 of MICHAEL H is about the worst piece of baklava I've ever tasted. To say that all fundemental rights must be defined in specific terminology... is I, II, III, IV.... especially XIV amendments specific? Does it say "right to bare arms" or does it say "right to carry this M-16 with a permit?" You can't have your cake and eat it, too, Tony.
But to flail one's arms at the idea that voting practices need to be consistant (and one must prove intent and disperate impact) in all sorts of election cases and THEN go down the one-hit wonder path of BUSH V GORE (which can only be stare decisis for my ass.) RE: DAVIS V BANDEMER (White's opinion): "An equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively." How can Bush have claimed Equal Protection when the court ruled in this case that "relying on a single election to prove unconstitutional discrimination is unsatisfactory?" How are the voters disenfranchised by a recount? Since when do "vote counting standards" get strict scrutiny?
(Although O'Conner and Rehnquist concurred in the judgement of BANDEMER, they wrote a seperate opinion on justiciability, of which I quote: " to turn these matters over to the federal judiciary is to inject the courts into the most heated partisan issues.")
My prof likes to trash O'Conner's "undue burden" standards in CASEY (I don't know why people whine about ROE; CASEY is much more important in the modern world.) I'd like an "intent" standard; law intends to inhibit a woman's right to choose, it gets struck. If "intent" is the mantra of equal protection (disperate impact seems almost impossible to prove), then why can't intent be the mantra of abortion cases?
And why is Rehnquist defending KORMATSU (spelling wrong, I know)?
The Supreme Court: highest law of the land, inconsistant as the day is long.
Posted by emily at February 1, 2006 12:59 PM