Posts Tagged ‘SCOTUS’

“We are not to simply bandage the wounds of victims beneath the wheels of injustice, we are to drive a spoke into the wheel itself.”—Dietrich Bonhoeffer

The untimely death of Supreme Court Justice Antonin Scalia has predictably created a political firestorm.

Republicans and Democrats, eager to take advantage of an opening on the Supreme Court, have been quick to advance their ideas about Scalia’s replacement. This is just the beginning of the furor over who gets to appoint the next U.S. Supreme Court justice (President Obama or his successor), when (as soon as Obama chooses or as long as Congress can delay), how (whether by way of a recess appointment or while Congress is in session), and where any judicial nominee will stand on the hot-button political issues of our day (same-sex marriage, Obamacare, immigration, the environment, and abortion).

This is yet another spectacle, not unlike the carnival-like antics of the presidential candidates, to create division, dissension and discord and distract the populace from the nation’s steady march towards totalitarianism.

Not to worry. This is a done deal. There are no surprises awaiting us.

We may not know the gender, the orientation, the politics, or the ethnicity of Justice Scalia’s replacement, but those things are relatively unimportant in the larger scheme of things.

The powers-that-be have already rigged the system. They—the corporations, the military industrial complex, the surveillance state, the monied elite, etc.—will not allow anyone to be appointed to the Supreme Court who will dial back the police state. They will not tolerate anyone who will undermine their policies, threaten their profit margins, or overturn their apple cart.

Scalia’s replacement will be safe (i.e., palatable enough to withstand Congress’ partisan wrangling), reliable and most important of all, an extension of the American police state.

With the old order dying off or advancing into old age rapidly, we’ve arrived at a pivotal point in the makeup of the Supreme Court. With every vacant seat on the Court and in key judgeships around the country, we are witnessing a transformation of the courts into pallid, legalistic bureaucracies governed by a new breed of judges who have beencareful to refrain from saying, doing or writing anything that might compromise their future ambitions.

Today, the judges most likely to get appointed today are well-heeled, well-educated (all of them attended either Yale or Harvard law schools) blank slates who have traveled a well-worn path from an elite law school to a prestigious judicial clerkship and then a pivotal federal judgeship. Long gone are the days when lawyers without judicial experience such as Earl Warren, William Rehnquist, Felix Frankfurter, and Louis Brandeis could be appointed to the Supreme Court.

As Supreme Court correspondent Dahlia Lithwick points out, “a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel” results in “perfect judicial thoroughbreds who have spent their entire adulthoods on the same lofty, narrow trajectory.”

In other words, it really doesn’t matter whether a Republican or Democratic president appoints the next Supreme Court justice, because they will all look alike (in terms of their educational and professional background) and sound alike (they are primarily advocates for the government).

Given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, and corporate corruption, the need for a guardian of the people’s rights has never been greater.

Unfortunately, as I document in Battlefield America: The War on the American People, what we have been saddled with instead are government courts dominated by technicians and statists who march in lockstep with the American police state.

This is true at all levels of the judiciary.

Thus, while what the nation needs is a constitutionalist, what we will get is a technician.

It’s an important distinction.

A legal constitutionalist believes that the authority of government derives from and is limited by a body of fundamental law (the Constitution) and strives to hold the government accountable to abiding by the Constitution. A judge of this order will uphold the rights of the citizenry in the face of government abuses.

Justice William O. Douglas, who served on the Supreme Court for 36 years, was such a constitutionalist. He believed that the “Constitution is not neutral. It was designed to take the government off the backs of the people.” Considered the most “committed civil libertarian ever to sit on the court,” Douglas was frequently controversial and far from perfect (he was part of a 6-3 majority in Korematsu vs. United States that supported the government’s internment of American citizens of Japanese descent during World War II). Even so, his warnings against a domineering, suspicious, totalitarian, police-driven surveillance state resonate still today.

A legal technician, on the other hand, is an arbitrator of the government’s plethora of laws whose priority is maintaining order and preserving government power. As such, these judicial technicians are deferential to authority, whether government or business, and focused on reconciling the massive number of laws handed down by the government.

John Roberts who joined the Supreme Court in 2005 as Chief Justice is a prime example of a legal technician. His view that the “role of the judge is limited…to decide the cases before them” speaks to a mindset that places the judge in the position of a referee. As USA Today observes, “Roberts’ tenure has been marked by an incremental approach to decision-making — issuing narrow rather than bold rulings that have the inevitable effect of bringing the same issues back to the high court again and again.”

Roberts’ approach to matters of law and justice can best be understood by a case dating back to his years on the U.S. Court of Appeals for the District of Columbia. The case involved a 12-year-old black girl who was handcuffed, searched and arrested by police—all for eating a single French fry in violation of a ban on food in the D.C. metro station. Despite Roberts’ ability to recognize the harshness of the treatment meted out to Ansche Hedgepeth for such a minor violation—the little girl was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained for three hours, and was “frightened, embarrassed, and crying throughout the ordeal”—Roberts ruled that the girl’s constitutional rights had not been violated in any way.

This is not justice meted out by a constitutionalist.

This is how a technician rules, according to the inflexible letter of the law.

Circuit Judge Sri Srinivasan of the DC Court of Appeals, who is rumored to be a favorite pick for Scalia’s spot on the court, is another such technician. When asked to strike down a 60-year-old ban on expressive activities in front of the Supreme Court Plaza, Srinivasan turned a blind eye to the First Amendment. (Ironically, the Supreme Court must now decide whether to declare its own free speech ban unconstitutional.)

By ruling in favor of the ban, Srinivasan also affirmed that police were correct to arrest an African-American protester who was standing silently in front of the Supreme Court wearing a sign protesting the police state on a snowy day when no one was on the plaza except him.

Srinivasan’s rationale? “Allowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the opposite impression: that of a Court engaged with — and potentially vulnerable to — outside entreaties by the public.”

This view of the Supreme Court as an entity that must be sheltered from select outside influences—for example, the views of the citizenry—is shared by the members of the Court itself to a certain extent. As Lithwick points out:

The Court has become worryingly cloistered, even for a famously cloistered institution… today’s justices filter out anything that might challenge their perspectives. Antonin Scalia won’t read newspapers that conflict with his views and claims to often get very little from amicus briefs. John Roberts has said that he doesn’t believe that most law-review articles—where legal scholars advance new thinking on contemporary problems—are relevant to the justices’ work. Ruth Bader Ginsburg, Scalia’s opera-going buddy, increasingly seems to revel in, rather than downplay, her status as a liberal icon. Kennedy spends recesses guest-teaching law school courses in Salzburg.”

Are you getting the picture yet?

The members of the Supreme Court are part of a ruling aristocracy composed of men and women who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo.

These justices, all of whom are millionaires in their own rights, circulate among an elite, privileged class of individuals, attending exclusive events at private resorts orchestrated by billionaire oil barons, traveling on the private jets of billionaires, and delivering paid speeches in far-flung locales such as Berlin, London and Zurich.

When you’re cocooned within the rarefied, elitist circles in which most of the judiciary operate, it can be difficult to see the humanity behind the facts of a case, let alone identify with the terror and uncertainty that most people feel when heavily armed government agents invade their homes, or subject them to a virtual strip search, or taser them into submission.

If you’ve never had to worry about police erroneously crashing through your door in the dead of night, then it might not be a hardship to rule as the Court did in Kentucky v. King that police should have greater leeway to break into homes or apartments without a warrant.

If you have no fear of ever being strip searched yourself, it would be easy to suggest as the Court did in Florence v. Burlington that it’s more important to make life easier for overworked jail officials than protect Americans from debasing strip searches.

And if you have never had to submit to anyone else’s authority—especially a militarized police officer with no knowledge of the Constitution’s prohibitions against excessive force, warrantless searches and illegal seizures, then you would understandably give police the benefit of the doubt as the Court did in Brooks v. City of Seattle, when they let stand a ruling that police officers who had clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution.

Likewise, if you’re not able to understand what it’s like to be one of the “little guys,” afraid to lose your home because some local government wants to commandeer it and sell it to a larger developer for profit, it would be relatively easy to rule, as the Supreme Court did in Kelo v. New London, that the government is within its right to do so.

Now do you understand why the Supreme Court’s decisions in recent years, which have run the gamut from suppressing free speech activities and justifying suspicionless strip searches to warrantless home invasions and conferring constitutional rights on corporations, while denying them to citizens, have been characterized most often by an abject deference to government authority, military and corporate interests?

They no longer work for us. They no longer represent us. They can no longer relate to our suffering.

In the same way that the Legislative Branch, having been co-opted by lobbyists, special interests, and the corporate elite, has ceased to function as a vital check on abuses by the other two branches of government, the Judicial Branch has also become part of the same self-serving bureaucracy.

Sound judgment, compassion and justice have taken a back seat to legalism, statism and elitism.

Preserving the rights of the people has been deprioritized and made to play second fiddle to both governmental and corporate interests.

In the case of the People vs. the Police State, the ruling is 9-0 against us.

So where does that leave us?

The Supreme Court of old is gone, if not for good then at least for now.

It will be a long time before we have another court such as the Warren Court (1953-1969), when Earl Warren served alongside such luminaries as William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter and Thurgood Marshall.

The Warren Court handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination. Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools and no civil rights protections for indigents.

Yet more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court should always be—an institution established to intervene and protect the people against the government and its agents when they overstep their bounds.

That is no longer the case.

We can no longer depend on the federal courts to protect us against the government. They are the government.

Yet as is the case with most things, the solution is far simpler and at the same time more complicated than space allows, but it starts with local action—local change—and local justice. If you want a revolution, start small, in your own backyard, and the impact will trickle up.

If you don’t like the way justice is being meted out in America, then start demanding justice in your own hometown, before your local judges. Serve on juries, nullify laws that are egregious, picket in front of the courthouse, vote out judges (and prosecutors) who aren’t practicing what the Constitution preaches, encourage your local newspapers to report on cases happening in your town, educate yourself about your rights, and make sure your local judges understand that they work for you and are not to be extensions of the police, prosecutors and politicians.

This is the only way we will ever have any hope of pushing back against the police state.

In yet another victory for the Fourth Amendment, the U.S. Supreme Court has ruled in Missouri v. McNeely that police may not forcibly take blood from a drunk driving suspect without a warrant. Insisting that the Fourth Amendment requires judicial authorization for such drastic action except in emergency situations, the Court rejected arguments by state officials asking it to establish a per se rule that all cases of drunk driving present “exigent circumstances” allowing police to extract blood from a suspect without a warrant.

The Rutherford Institute filed an amicus curiae brief in the case on behalf of Tyler McNeely, who was forced to give a blood sample after being arrested on suspicion of driving while intoxicated. Although McNeely refused to submit to a blood test, the arresting officer ordered hospital personnel to extract his blood anyway and test it for alcohol levels. In weighing in on the case, Rutherford Institute attorneys argued that the state’s interests in ensuring public safety and discouraging drunk driving could have been realized in a manner that secured the desired blood alcohol evidence while at the same time protecting McNeely’s constitutional rights in keeping with the Fourth Amendment’s warrant requirement and prohibition on unreasonable searches and seizures.

In accord with the Institute’s brief, the Supreme Court’s majority opinion held that forced extraction of a person’s blood is “an invasion of bodily integrity [that] implicates an individual’s most personal and deep-rooted expectations of privacy” and, absent some emergency, should not be allowed unless a judge has found probable cause to justify the intrusion.

While public safety is of great concern, especially when it comes to serious offenses such as driving under the influence of alcohol, Americans’ constitutional rights cannot be wholly discounted and conveniently discarded. This case has far-reaching implications that go beyond one man’s run-in with the police. The Supreme Court is to be commended for recognizing that if we allow government agents broad powers to invade our bodies without consent or court order, the bodily integrity of all persons in the United States will be in serious jeopardy.

The case arose out of an incident that took place in in October 2010 when Tyler McNeely was stopped by a Missouri state highway patrolman. Based upon his behavior, the patrolman suspected that McNeely was intoxicated. The patrolman led McNeely through a series of field sobriety tests and based upon the results, arrested him for drunk driving. After McNeely refused to submit to a breathalyzer test, the patrolman took him to a nearby hospital in order to secure a sample of his blood and test it for alcohol levels. Although McNeely refused to consent to a blood test, the patrolman ordered a hospital lab technician to take a blood sample from McNeely. At no point did the officer attempt to obtain a warrant authorizing the extraction.

In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys stressed that forcible bodily intrusions of the kind inflicted on McNeely are among the most serious abuses of government authority which the Fourth Amendment was meant to forbid, and that such intrusions should be allowed only in extremely urgent circumstances. Institute attorneys also noted that enforcement of drunk driving laws does not suffer when warrants for blood extraction are required, many of which can be obtained within a relatively short time, often within 30 minutes of an arrest. — John W. Whitehead

“The unspoken power dynamics in a police/civilian encounter will generally favor the police, unless the civilian is a local sports hero, the mayor, or a giant who is impervious to bullets.”—Journalist Justin Peters

From time to time throughout history, individuals have been subjected to charges (and eventual punishment) by accusers whose testimony was treated as infallible and inerrant. Once again, we find ourselves repeating history, only this time, it’s the police whose testimony is too often considered beyond reproach and whose accusations have the power to render one’s life over.

In the police state being erected around us, the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts. Making matters worse, however, police dogs—cute, furry, tail-wagging mascots with a badge—have now been elevated to the ranks of inerrant, infallible sanctimonious accusers with the power of the state behind them. This is largely due to the U.S. Supreme Court’s recent ruling in Florida v. Harris, in which a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine.

This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound, in which a unanimous Supreme Court determined that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops, comes on the heels of recent decisions by the Court that give police the green light to taser defenseless motorists, strip search non-violent suspects arrested for minor incidents, and break down people’s front doors without evidence that they have done anything wrong.

These are the hallmarks of the emerging American police state, where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens. Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, in a police state such as ours, these instances of abuse are not condemned by the government. Rather, they are continually validated by a judicial system that kowtows to every police demand, no matter how unjust, no matter how in opposition to the Constitution.

The justices of the United States Supreme Court through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency have become the architects of the American police state.

The justices of the United States Supreme Court through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency have become the architects of the American police state.

In Florida v. Harris, for example, the Court was presented with the case of Clayton Harris who, in 2006, was pulled over by Officer William Wheetley for having an expired license tag. During the stop, Wheetley decided that Harris was acting suspicious and requested to search his vehicle. Harris refused, so Wheetley brought out his drug-sniffing dog, Aldo, to walk around Harris’ car. Aldo allegedly alerted to the door handle of Harris’ car, leading Wheetley to search the vehicle.

Although the search of Harris’ car did not turn up any of the drugs which Aldo was actually trained to detect, such as marijuana, Wheetley found pseudophedrine, a common ingredient in cold medicine, and other materials allegedly used in the manufacture of methamphetamine. Harris was arrested and released on bail, during which time he was again stopped by Officer Wheetley and again subjected to a warrantless search of his vehicle based upon Aldo’s alert, but this time Wheetley found nothing.

Harris challenged the search, arguing that the police had not provided sufficient evidence that Aldo was a reliable drug-sniffing dog, thus his supposed alert on Harris’ door did not give the officer probable cause to search the vehicle. The Florida Supreme Court agreed, ruling that police should be able to prove that the dog actually has a track record of finding drugs while in the field before it is used as an excuse for a warrantless search.

Unfortunately, the U.S. Supreme Court did not see it that way. In reversing the Florida Supreme Court’s ruling, the U.S. Supreme Court sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. As such, the Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The ruling turns man’s best friend into an extension of the police state.

The Supreme Court’s decision is particularly alarming when one considers that drug sniffing dogs, even expertly trained dogs with reliable handlers, are rarely accurate. One study demonstrated that dogs were incorrect in drug identification up to 60% of the time. A 2011 study published in Animal Cognition involved a series of tests, some designed to fool the dog and some designed to fool the handler. The dogs in these tests falsely alerted 123 out of a total of 144 times. When a test was designed to fool the handler rather than the dog, the dog was twice as likely to falsely alert.

As the Animal Cognition study shows, dogs are heavily influenced by the behavior and biases of their handlers. If an officer thinks he is likely to find something, whether due to personal bias or because he finds the suspect suspicious, he often cues his dog—consciously or unconsciously—to alert on the area to be searched.

The Supreme Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The Court’s ruling in Florida v. Harris turns man’s best friend into an extension of the police state.

Despite being presented with numerous reports documenting flaws in the use of drug-detection dogs, the U.S. Supreme Court opted to ignore plentiful evidence that drug dog alerts are specious at best. Moreover, the justices also chose to interpret Aldo’s failure to detect any of the drugs he was trained to find during the two sniff searches around Harris’ car as proof of Aldo’s superior sniffing skills rather than glaring proof that drug-sniffing dogs do make mistakes. Incredibly, the Court suggested that the dog alert was due to Aldo having smelled an odor that was transferred to the car door after the defendant used methamphetamine—a supposition that is nearly impossible to prove.

Law enforcement officials have come up with a slew of clever excuses to “explain” the not uncommon phenomenon of dogs that alert but fail to uncover drugs. For example, in 2008, U.S. border patrol agent Christopher Jbara claimed that a dog alerted to a car containing no drugs because the car’s window “had been washed by a window washer on the street… and the water used to clean it could have been contaminated with bong water.” The real reason may be that the odors which dogs are trained to detect are simply chemical compositions found in a number of common products. For example, to a dog, perfume may smell like cocaine, glue may smell like heroin, and mosquito repellant may smell like the drug ecstasy.

Unfortunately, the Supreme Court’s decision is merely the latest in a long line of abuses justified by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution. For example, in 2011, the U.S. Supreme Court ruled 8-1 in Kentucky v. King that police may smash down doors of homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed.  Despite the fact that police busted in on the wrong suspect in the wrong apartment, the Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered.

In April 2012, a divided Supreme Court ruled in Florence v. Burlington that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials, which involves exposing the genitals and the buttocks.

This “license to probe” is being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches without any evidence of wrongdoing and without a warrant. For example, Angel Dobbs and her niece, who were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window, were subjected to roadside cavity searches of their anus and vagina. The officer claimed to be searching for marijuana. No marijuana was found.

With case after case stacking up in which the courts empower the police to run roughshod over citizens’ rights, the Constitution be damned, the outlook is decidedly grim. In fact, the U.S. Supreme Court still has to rule on another drug-sniffing, dog-related case, Florida v. Jardines, which challenges warrantless searches of individuals’ homes based on questionable dog alerts. For those hoping that our rights will be restored or at least protected, you could have a long wait.

Indeed, the next decision from the Supreme Court might just take the Fourth Amendment down for the count. — John W. Whitehead