BACKGROUND & CHARACTER
JUDGES & COURTS
Farrakhan Says ‘New Beginning’ For Nation of Islam
CHICAGO (AP) ― The Nation of Islam, a secretive movement generally closed to outsiders, has planned a rare open-to-the public event at its Chicago-based headquarters in what the Minister Louis Farrakhan deemed a “new beginning” for the group.
Hundreds of religious leaders of different faiths have been invited to the event planned for Sunday, a rededication of the group’s historic Mosque Maryam on the city’s South Side. Farrakhan is scheduled to speak.
“We have restored Mosque Maryam completely, and we will dedicate it to the universal message of Islam, and the universal aspect of the teachings of the Honorable Elijah Muhammad,” Farrakhan said in an invitation letter. “It represents for the Nation of Islam, a new beginning.”
The event comes just weeks after the death of Imam W.D. Mohammed, the son of Nation founder Elijah Muhammad who broke with the group and moved thousands of African-Americans toward mainstream Islam.
The Nation purchased the mosque, a former Greek Orthodox church, in 1972 and has since been making renovations. The stately 1948 structure, embellished with a golden dome and topped with an Islamic crescent moon, is adorned with Quranic verses in Arabic.
Experts say opening the mosque’s doors to the public is a calculated move.
“It is a very conscious effort to open the mosque up to the community and to rededicate the community to learning about Islam,” said Aminah McCloud, a professor of Islamic studies at DePaul University. “Previously, the Nation has been open to people coming to visit it, but its members don’t generally go anywhere else … now there is a concerted effort.”
While the Nation has espoused black nationalism and self-reliance since it was founded in the 1930s, in recent years members have reached out to other groups. For instance, the Nation has a Latino liaison and has become involved in immigrant rights rallies and marches. Also, the Minister Ishmael Muhammad, a top assisting minister at the mosque and widely thought to be a potential successor to Farrakhan, has talked about unity between all people, at times speaking in Spanish.
Farrakhan, 75, has haltingly tried to move the Nation toward traditional Islam, which considers the American movement heretical because of its view of Elijah Muhammad as a prophet — among other novel teachings. Orthodox Islam teaches that there has been no prophet after Prophet Muhammad in the seventh century.
He’s also played down some of the group’s more controversial beliefs. The Nation of Islam has taught that whites are descended from the devil and that blacks are the chosen people of Allah.
The event on Sunday also wraps up a week of events marking the 13th anniversary of the Million Man March, which Farrakhan began in 1995. That year, hundreds of thousands of people traveled to Washington, D.C. to participate.
On Thursday, Farrakhan spoke to inmates at Cook County jail urging self improvement, atonement and reconciliation, principles the Million Man March promoted.
Those values “can help reduce violence and anti-social behavior … and have universal significance and will benefit those willing to listen,” according to a statement from the Nation.
Farrakhan’s Sunday speech will mark his second major public address this year and is among several smaller community and religious events he has attended.
His public appearances have surprised many since in 2006, he seceded leadership to an executive board while recuperating from serious complications from prostate cancer.
In February, Farrakhan appeared at an annual Saviours’ Day event in Chicago and called Democratic presidential candidate Barack Obama the “hope of the entire world” that the U.S. will change for the better. The Obama campaign quickly denounced Farrakhan’s support, because of past comments about Jews that many have called offensive.
In the past months, Farrakhan has attended funeral services of W.D. Mohammed and Jabir Herbert Muhammad, both sons of the late Elijah Muhammad.
Led by Senator Charles Schumer, Senate Democrats are trying to bamboozle the American public into believing that Bush appointees to the Supreme Court are dangerous radicals.
Senator Schumer’s suggestion and Justice Beyer’s unusual and inappropriate complaint to Senator Specter that the newest members of the Supreme Court — Chief Justice Roberts and Justice Alito — are ignoring and overruling established precedent is of a piece with the mandarinate’s general and untrue response to the Administration: the Mongols have taken over.
I have reviewed the law on stare decisis (the doctrine that judges should rule in accord with past precedent to be sure that the legal guidelines are predictable and non-chaotic). It is a doctrine which has much to commend it, but it is often confused and confusing. I have compared what Justice Breyer and Justices Roberts and Alito said of the doctrine at their confirmation hearings and reviewed these eight opinions which seem to have been the source of the charge:
As I will explain in greater detail in this and following articles, I believe the charge is a false one, a pretextual one, in fact. It is the substantive rulings which the critics dislike, not the legal reasoning. The charge amounts to a bit of legerdemain aimed at a public not familiar with the doctrine, a public whose principal source of information about the Court and its rulings is a media unwilling or unable to examine the charge on its merits. This one-two-punch by Democrats and the media has created a distorted view among the public of the Court’s methods and rulings.
In other legal systems where the courts are all part of a national system, the doctrine is perhaps more easily understood. In a federal republic as ours is, it is slightly more complicated. Thus, a lower court in the federal system is bound more closely to apply the law as established by the Court of Appeals over it, and even more constricted in departures from the rulings by the Supreme Court. Except on matters of interpretation of state law, federal courts have little obligation to pay any attention to State Court rulings in determining a later case. But there is no need for much discussion on this interesting point as the harder question and the one at issue here is the Supreme Court’s adherence to its own precedents.
But remember when reading a Supreme Court case, each ruling is based on the facts before the Court, and those facts largely depend on the presentation of the case in the lowest court where the matter originated. That first court is the finder of fact and rarely overruled on such findings, provided the opinion is not an irrational adjudication on the record. It also depends on the skill of counsel — an important issue may have been overlooked by the petitioner, and the Court is rather bound in its decision-making to what was briefed and argued before it. The Supreme Court is not free to hold hearings and make its own factual findings or to interject into the decision-making process points of law not previously raised by the parties themselves in a timely fashion. Despite all the confused and confusing explications of when prior decisions should be followed, in the end whether the subsequent ruling is correct or not depends largely upon a close reading of the facts of both cases.
Factors weighing on the applicability of precedent
One factor to consider is whether the older ruling has held the test of time. Is it in retrospect so irrational and creating so much chaos itself that there is little reason to continue down that path?
Was the statement in the prior case which the Court is being urged to follow, essential to the earlier ruling? Or was it obiter dicta (often just referred to as “dicta”), an off-hand comment by one or more judges on a matter that was irrelevant to the earlier decision and one not fully briefed or argued? We have an adversary system in our courts because we believe it provides the decision-makers the most complete understanding of the issues and law. There is absolutely no reason to give weight to a point of law which never was decided on the basis of a thorough examination and debate.
Yet another factor to weigh is whether the decision is one regularly relied on in ordinary business and property transactions such that any departure from it would cause undue confusion and disruption?
And last but not least, of the things to remember when reading the various Court statements on stare decisis, is whether the original decision is a proper explication of the Constitution, the primary law of the land.
These are not the only factors to consider in deciding whether to give great weight to prior rulings, but they are significant ones and, as I hope you can see, they are all perfectly logical — although at times different judges dispute the application of some of these principles in any given case.
The Supreme Court does not automatically hear all appeals to it. Cases which are chosen are usually on hotly contested difficult legal issues. Often different Courts of Appeals have taken different views on the same or closely related matters so that one could certainly expect that the nine perfectly honorable and intelligent judges would see the matter before them from far different points of view. And it is perfectly understandable that new viewpoints are more likely with each change of the composition of the Court. Given that, it is to be expected that Justices Roberts and Alito, viewing matters as new justices, would on occasion have a different perspective than those judges they succeeded to the Court. But as I will show in a subsequent article, each and every decision by them, in context, was supported by the long-standing principles at the very heart of the doctrine that deference is due (under appropriate circumstances) to prior decisions.
The final thing I’d like you to remember about stare decisis is that the very doctrine itself is given far less weight with respect to Constitutional issues than with respect to statutory or common law decisions.
“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right…. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function.” –Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Justice Brandeis dissenting).
[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. Smith v. Allwright, 321 U.S. 649, 665 (1944).
Indeed, if precedent were always followed, among the rulings that would still be in effect today are those that permitted slavery, separate-but-equal treatment of citizens based on race and the forced internment of Americans based on their national origin.
Should overruling an earlier opinion (based on a view that it misread the Constitution) be less warranted if the opinion is very recent? I agree with Justice Scalia, that such an approach is illogical. -Scalia dissent South Carolina v. Gathers, 490 U.S. 805,825 (1989):
Overrulings of precedent rarely occur without a change in the Court’s personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. But that is hardly unprecedented. See, e.g., Daniels v. Williams, 474 U.S. 327, 330-331 (1986) (overruling Parratt v. Taylor, 451 U.S. 527 (1981)); United States v. Scott, 437 U.S. 82, 86-87 (1978) (overruling United States v. Jenkins, 420 U.S. 358 (1975)); West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (overruling Minersville School District Board of Education v. Gobitis, 310 U.S. 586 (1940)). Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it.[/quote]
Former Justices Douglas and O’Connor’s have expressed similar views. Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949). Or as the Court itself has said:
[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. –Smith v. Allwright, 321 U.S. 649, 665 (1944).
Once a law-abiding society has revised its laws and practices to comply with such an erroneous decision, [p825] the existence of a new “consensus” can be appealed to — or at least the existence of the preexisting consensus to the contrary will no longer be evident — thus enabling the error to triumph by our very failure promptly to correct it. Cf. Thompson v. Oklahoma, 487 U.S. 815, 854-855 (1988) (O’CONNOR, J., concurring in judgment).
Clarice Feldman is an attorney in Washington, DC
The left is astir again. From Slate to the op ed pages of the New York Times and the People for the American Way (PFAW) handouts, it is clear that the left is ginning up to replay their war against any judicial nominee this President may yet propose for any forthcoming vacancy on the Supreme Court.
People for the American Way, funded by rich lefties George Soros and Peter Lewis, has consistently been the maestro of the left’s judicial nominee opposition. In its most recent press release its president, Ralph Neas says:
“Under Chief Justice Roberts, the Court has turned sharply to the right, and far out of the mainstream of American thought. Rights and freedoms Americans take for granted stand in peril, and the progress that we have made in social justice over the past 70 years is at risk.
“In just their first full term together, a new right-wing bloc on the Court has signaled that it is willing to roll back reproductive choice for women, curb free expression, favor corporations over workers in discrimination cases, limit access to the courts for ordinary Americans, and start to tear down the wall between church and state that protects religious liberty for all Americans.
“While Chief Justice Roberts and Justice Alito gave lip service to respect for the established rulings of the Court in their confirmation hearings, they have not hesitated to tear down or undermine long-held rulings. This Court has shown the same respect for precedent that a wrecking ball shows for a plate glass window.
Senator Schumer, fresh off his outrageous, proven to be unwarranted, suggestions that the Attorney General perjured himself before the Senate Judiciary Committee, has said that he was hoodwinked by the confirmation hearing testimony of Chief Justice Roberts and Justice Alito and, therefore, will block any new nominees to the Court by the Bush Administration.
(I note that this hoodwinking charge seems inexplicable since Schumer voted against the confirmation of both men. How duped is that?)
In other stories an off-hand remark by Senator Specter to the effect that he was going to review the confirmation hearing testimony of Roberts and Alito has been spun to suggest he thinks there’s merit in Schumer’s claim. But he later indicated this is not the case, and that he was responding to an assertion by Justice Breyer to him at a conference respecting the new justices’ fealty to the concept of Stare Decisis, a complex doctrine in application, respecting the appropriate weight to give to prior decisions.
I have reviewed the cases Breyer seems to have referred to and the confirmation testimony of Roberts and Alito and will as soon as time permits detail why I think these charges are unfounded. (Indeed, I think one might say Breyer is projecting, for his dissents in these cases are inconsistent with his views as expressed in his confirmation hearings. In the meantime, here is Justice Breyer’s record respecting the judicial deference owed to prior precedent and his own confirmation hearing testimony on the issue.
1) Justice Breyer has authored opinions explicitly overruling precedent:
* United States v. Hatter, 532 U.S. 557 (2001)
* Lapides v. Board of Regents, 535 U.S. 613 (2002)
2) On several other occasions he has helped form a majority to overrule precedent. E.g.:
* Atkins v. Virginia, 536 U.S. 304 (2002)
* Lawrence v. Texas, 539 U.S. 558 (2003)
* Crawford v. Washington, 541 U.S. 36 (2004)
* Roper v. Simmons, 125 S. Ct. 1183 (2005)
3) He has joined at least one dissent advocating overruling precedent:
* City of Boerne v. Flores, 521 U.S. 507 (1997) (O’Connor, J., joined by Breyer, J.)
4) He has joined a dissent indicating that he (and others) won’t hesitate to overrule the decision from which they are dissenting.
* Carhart v. Gonzales (2007) (“A decision so at odds with our jurisprudence should not have staying power.”) (Ginsburg, J., dissenting, joined by, inter alia, Breyer, J.)
5) Excerpts from Justice Breyer’s Judiciary Committee hearing:
“I think that the law itself provides ways of departing from past law. There are circumstances in which it is appropriate according to the law to depart from the prior decision. Those have been listed by the Supreme Court recently. You look to the earlier decision and you ask how wrong was that decision. You look to see the ways and the extent to which the law has changed in other related ways. You look to see the extent to which facts have changed. You look to see how much difficulty and trouble that old rule of law that seems badly reasoned has created as the courts have tried to apply it. And then, going the other way, you look to see the extent to which there has been reliance on that old past law.” (Hearing Tr. p. 234)
“My view is that stare decisis is very important to the law. Obviously, you can’t have a legal system that doesn’t operate with a lot of weight given to stare decisis, because people build their lives, they build their lives on what they believe to be the law. And insofar as you begin to start overturning things, you upset the lives of men, women, children, people all over the country. So be careful, because people can adjust, and even when something is wrong, they can adjust to it. And once they have adjusted, be careful of fooling with their expectation. Now, that is the most general forum….
“When I become a little bit more specific, it seems to me that there are identifiable factors that are pretty well established. If you, as a judge, are thinking of overturning or voting to overturn a preexisting case, what you do is ask a number of fairly specific questions. How wrong do you think that prior precedent really was as a matter of law, that is, how badly reasoned was it?
You ask yourself how the law has changed since, all the adjacent laws, all the adjacent rules and regulations, does it no longer fit. You ask yourself how have the facts changed, has the world changed in very important ways. You ask yourself, insofar, irrespective of how wrong that prior decision was as a matter of reasoning, how has it worked out in practice, has it proved impossible or very difficult to administer, has it really confused matters. Finally, you look to the degree of reliance that people have had in their ordinary lives on that previous precedent.
“Those are the kinds of questions you ask. I think you ask those questions in relation to statutes. I think you ask those questions in relation to the Constitution. The real difference between the two areas is that Congress can correct a constitutional court, if it is a statutory question, but it can’t make a correction, if it is a constitutional matter. So be pretty careful.”
(Hearing Tr. p. 291)
The Judiciary Committe and American people deserve better than this clown show.
By Ed Lasky
There are preliminary signs of a looming dangerous breach of constitutional safeguards, one that would extend Congressional power into the executive and judicial branches of government. This unprecedented series of threatened actions imperils the checks and balances that have been the bulwark of our system of government.
The Democrats’ anger over the Supreme Court decision that led to George Bush’s Presidency has mutated into an unseemly rage in response to a series of decisions that Democrats disfavor. The extent of this overreach is revealed when considering this past week’s developments: a pattern is developing and future actions deserves strict scrutiny.
The Democrats and their allies in the media have been harping for years that the Bush Administration repeatedly violated the laws of our nation and those of the “international community”. Fearing that the Supreme Court – an independent branch of government – will not agree with their views on these issues and others (abortion, for example) the Democrats (sometimes aided by Sen. Specter) seem to be engaging a multi-pronged attack on the Supreme Court of the United States.
Three recent examples:
1) Senator Chuck Schumer – one of the most powerful Democratic Senators – has announced that he will fight any new Supreme Court nominee from George Bush. He apparently would rather have vacancies in the Court until a Democratic President is in place to nominate judges that a presumably Democrat Senate will confirm. This dereliction of duty on the part of the Senator conforms with a pattern of obstruction on the part of a Senate that has repeatedly refused to confirm a series of judges the Bush Administration has nominated to serve in the federal court system. This is preventing the executive branch from fulfilling its role to enforce the law and is a blatant attempt by the legislative branch to assume control of the executive and judiciary branch of the government.
2) Senator Arlen Specter — a RINO (A Republican in Name Only) — has announced that he wants to examine previous testimony given by Supreme Court justices during the nomination process to measure how closely they hewed to the positions and principles enunciated during questioning by the Senate Judiciary Panel. As the Wall Street Journal opined in an editorial, “Advise and Repent,” Senator Specter apparently believes that Justice confirmed by the Judiciary Committee (and then the Senate) made “promises” regarding how they would decide on issues brought before the Court. As the Journal eloquently puts it:
“…it would be unseemly and improper for a nominee to seek confirmation to the nation’s highest Court by promising Senators how he or she would rule on a given issue on the bench.”
Each Court decision is uniquely dependent on the facts of the individual cases brought before it for review. Again, the Journal,
“This is the reason why judicial nominees refuse to predict how they would rule on topics-to prevent politicians from usurping the role of the judiciary and turning judges into Senators with robes”.
Specter and Company are outraged, apparently, that recent Court decisions seem to break with precedents. A Senator who does not realize and appreciate that this is precisely one of the roles of the Court does not belong on the Judiciary Committee.
Apparently, Senator Specter and his colleagues have no problem breaking precedent when it suites their political purposes. But a Senator, as a lawmaker, should at least acknowledge the basic principles behind the nomination of judges.
3) The New York Times ran an editorial a few days ago by Professor Jean Edward Smith (“Stacking the Court”) advocating that a Democratic Congress and a Democratic President expand the size of the Supreme Court. Smith writes,
“If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.”
Smith clearly finds the recent decisions of the Supreme Court not to his political taste and states that there is nothing “sacrosanct” about having nine justices on the Supreme Court. This may be true. But what is sacrosanct is that the judiciary is an independent branch of government, the selection of judges is within the purview of the elected President of the United States, and it is merely the responsibility of the Senate to advise and consent regarding their appointment. The role of the legislators is to draft the laws, not to invade an independent branch of the government and arrogate their duties and responsibilities to themselves to accomplish partisan goals.
The Democrats could expand the size of the Court, and, with the presidency and congress (particularly the Senate) under their control, appoint very young Justices who would outlast administrations yet to come. A liberal, activist Supreme Court – with actuarial tables as an ally – could prolong Democratic control past Administrations and Congresses yet to come.
The congress is not limiting its imperial overstretch to the Supreme Court of the United States. As the kerfuffle over the selection of US attorneys reveals, the Democrats are intent to take away the unfettered power of a President to appoint US attorneys. This is a power long vested in the President, and is a power that the Democrats had no problem seeing exercised when President Bill Clinton unceremoniously fired and replaced US attorneys during the early years of his Presidency – including one who was investigating the Whitewater controversy.
Ed Lasky is News Editor of American Thinker.
It’s been done before, says Jean Edward Smith, writing in an Op-Ed in the New York Times:
But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership.
The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.
In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.
Then there was FDR’s abortive plan to pack SCOTUS in order to ram some of his more radical New Deal programs through that the Supremes had struck down as being unconstitutional.
The current 9 justice court was voted by Congress during Grant’s term. But why would you fool with the number of justices?
WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.
So when the court strays from some undefined path – decided by who? – Democrats have a right to simply increase the size of the court to get their way?
If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.
“Popular values?” What happened to all that high falutin language about “the law?”
Congress not happy with US Supreme Court alignment? Well…just manipulate the size of the Court once Democratic majorities are established. How is this justice? What would prevent the Democratic majority from enlarging the SCOTUS to …let’ say…25 members then nominate and select 16 or so very young justices thereby ensuring a dominant Democratic-leaning Supreme Court for many years to come. Is that what this op-ed advocates? Blatant manipulation to satisfy partisan passions? The Supreme Court is supposed to be a check on such passions of the people.
Not if the court is going against “popular values” evidently.