A bombshell went off on the Internet Tuesday: At a recent event, Supreme Court Justice Antonin Scalia said that Brown v. Board of Education, the landmark desegregation case, was wrongly decided and that he'd have voted against the majority on it. This was, obviously, a big story -- a sitting justice saying he'd vote against Brown? Plus, everyone knew Scalia was conservative, but who knew he was that conservative?
Turns out there's a good reason no one knew Scalia is so far to the right on the issue -- he's not. He does, in fact, believe that Brown was correctly decided. The newspaper reporter that said Scalia had criticized the decision got his facts wrong. But that didn't stop more than a few people from picking up the story before legal blogger and constitutional law professor Jack Balkin found video of the event and showed that Scalia had been misquoted.
There's plenty of unfair criticism about blogs out there, but this is one area where the critics are absolutely right. Because of the nature of the medium and the pace of the blogosphere's news cycle, too many bloggers prioritize speed over quality, and they get burned on stories like this one as a result. In this case outlets like Huffington Post, Talking Points Memo, New York Magazine's Daily Intel blog and Political Wire, among others, all accepted the newspaper account uncritically and posted it.
Everyone gets a story wrong sometimes, there's no avoiding that. But in this instance, the bloggers who picked up the article could and should have avoided the situation. Scalia was never directly quoted saying something like, "I think Brown v. Board of Education was wrongly decided." The article, or at least this part of it, relied on paraphrasing. On a big story like this one, the lack of a direct quote demands, even more than usual, some stringent fact-checking. Before posting, it's just good practice to look for a primary source -- video, audio or a transcript from the event -- not to mention to check against Scalia's previous statements and even call the court for comment. It may mean you have to wait a few minutes, even a few hours, before posting what others already have, but it's better to be right than to be fast.
Supreme Court Justice Ruth Bader Ginsburg was hospitalized Wednesday night, the second time in less than a month she's been taken to the hospital. She was released Thursday morning, according to the Associated Press.
Ginsburg had been on a plane bound for London with three of her colleagues, but according to a statement released by the court, "Prior to the plane taking off, the justice experienced extreme drowsiness causing her to fall from her seat." The court says that Ginsburg's doctors believe the incident was the result of a reaction to medicine, specifically a prescription sleeping aid and an over-the-counter cold medicine.
Ginsburg had surgery for pancreatic cancer in February, which she said was successful; since her return to the court, the AP says, she hasn't missed a day of work.
The Supreme Court agreed Wednesday to hear what could end up being one of the most important cases in the history of the battle over gun control and the Second Amendment.
The case follows in the wake of the court's landmark 2008 decision in District of Columbia v. Heller. For the first time, the justices found that the Second Amendment protects an individual right to bear arms, rather than "a right to participate in the common defense, as D.C.'s lawyer argued, and it struck down the city's handgun ban.
But Heller only affected the federal goverment -- and, by extension, places like the nation's capital. Though the courts have ruled over the years that various parts of the Bill of Rights bind state governments as well as the feds, that doctrine has never been applied to the Second Amendment. Given the current makeup of the court, it's likely that is about to change, and that certain state and local restrictions on guns will be declared unconstitutional.
Younger voters -- those in the under-30 crowd like me -- invested an incredible amount of energy and enthusiasm in the 2008 elections. More of us came out to vote than ever before. We gave not just our votes but also our shoe leather and time as campaign volunteers. We showed up at campaign events by the thousands. And nearly one in 10 of us donated money to a presidential candidate. As young people, we are discovering a civic voice all our own, with unique perspectives on many of the challenges facing the country, and have become a powerful part of the electorate.
The Supreme Court, which begins a new term on Oct. 5, is working on a final decision in a case that could radically threaten our ability to make much difference in politics. In Citizens United v. FEC, the most important issue is whether the court will overturn rules that govern corporate electioneering -- that is, ads that support or oppose a candidate. For decades, legislatures and the courts have sought to limit corporations' and unions' spending in elections. This is because these groups' disproportionate ability to spend massive sums can distort the electoral process.
For decades, Congress has secured the integrity of our democracy by requiring that corporations and labor unions wishing to fund advertisements supporting or opposing candidates do so through political action committees. Instead of allowing corporations to funnel monies directly from company coffers into campaign war chests, PACs are funded through individual contributions. Campaign finance law makes it harder for corporate cash to crowd out the voices of groups -- youth voters, grassroots activists, minorities -- who are without ready access to reservoirs of money.
The Supreme Court has so far upheld this balance. The precedents in two cases, McConnell and Austin, that the court is currently considering overturning in the Citizens United case are only the latest in a long line of decisions regulating corporate expenditures in elections. But the most recent of those cases, McConnell, was decided in 2003, and the court's composition has changed. With a new majority -- specifically, with Samuel Alito and John Roberts replacing Sandra Day O'Connor and William Rehnquist -- the Supreme Court now appears to be considering an about-face on the constitutionality of much of campaign finance reform. (A lower court just struck down some campaign finance reform in Emily's List v. FEC.) If the court overturns precedent as radically as many fear, corporations and labor unions could be able to support or oppose candidates with funds right out of their treasuries.
Why does this concern younger voters like me? While our political idealism and passion run deep, our pockets generally do not. We do give what and when we can, but we certainly cannot afford to match the kind of massive expenditures corporations and unions can make. Even as it is, the financial contributions of younger voters to successful candidates often represent just a tiny part of what those candidates end up raising. According to the Campaign Finance Institute, all small donors of any age account for only 6 to 22 percent of the funds collected by Democratic and Republican senatorial candidates.
The much discussed "small-donor revolution" of the 2008 election, however, signaled a hopeful change toward a broader base of support for campaigns. An increased emphasis on smaller contributions was a natural outcome of the campaign finance laws now under threat. Limits on the size and source of contributions pushed political parties and candidates to the grass roots, and to youth, for a broader base of support. Young people played an important role in this shift. Tens of thousands of young first-time donors gave contributions as small as $10 and encouraged others to do the same. In the aggregate, this made a big difference, not only because candidates had to cultivate young people and pay attention to their views, but also because it gave young people the feeling of being stakeholders in politics and in civic life.
But a bad outcome in the Supreme Court case would dramatically reverse all this. Giant vested interests in industries like telecommunications, education, finance, energy and healthcare could make unlimited expenditures to elect or defeat candidates, all depending on how those candidates vote. The scale of the difference is almost unimaginable, on the order of hundreds of billions of dollars, more than enough to overwhelm the impact of small donors and drown out any future political opposition to corporate interests in the country.
We as young voters stand out for our opinions on war, climate change, civil rights and the role of government. And as a group, we face our own unique set of problems. To take an example from the current focus on healthcare, over 13 million of us do not have health insurance, making young adults the nation's largest group of uninsured Americans. On top of this, we have on average more debt, mostly from student loans. On a more basic level, we have the most direct stake in the future health of our planet.
The question is, Will younger voters, or any other economically disadvantaged group, be able to influence government to address these issues if the ability of corporations and labor unions to influence politics is made even stronger? Will the candidates with our interests in mind be able to compete with opponents backed by wealthier interests?
If the Supreme Court decides to overturn a century of precedent, the answers are bleak. But the young people who found their civic voice in the last election are unlikely to remain silent now. We may not be able to influence the way the Supreme Court votes, but we can stand prepared for the worst. Voluntary public funding for campaigns is one response we can call on Congress to make to the court's decision. While opening the floodgates on modern corporations' ability to fund electioneering would have unprecedented consequences, well-designed public funding systems could at least give serious candidates a better chance to compete, even if their stances aren't popular with wealthier interests. Public funding would also help allow the grass-roots activities we young Americans proved ourselves so capable of in 2008 continue to make a significant difference. In short, it would help ensure that we still matter to our democracy, no matter how the court rules.
Supreme Court Justice Ruth Bader Ginsburg was taken to the hospital Thursday night after feeling faint. A statement from the court says the trip to the hospital was precautionary, and that she was found to be in stable health.
Ginsburg, 76, was diagnosed with pancreatic cancer earlier this year. She underwent surgery for it in February, but has reportedly looked healthy while on the bench.
The full statement:
U.S. Supreme Court Justice Ruth Bader Ginsburg was taken to the Washington Hospital Center this evening after feeling ill in her Chambers earlier in the day. The Justice felt ill at 4:50 p.m., about an hour after an iron sucrose infusion to treat an iron deficiency anemia that was administered at the Office of the Attending Physician.
The Justice underwent a comprehensive assessment of health in July 2009. This involved medical evaluation, imaging scans, and comprehensive blood tests. The result of this evaluation was that she was in completely normal health with the exception of a low red blood cell count caused by deficiency of iron. Intravenous iron therapy was administered in a standard fashion.
One hour following the completion of this infusion, she felt faint, developed light headedness and fatigue. Medical assistance was summoned from the Office of the Attending Physician and medical evaluation disclosed a slightly low blood pressure which can occur following this treatment. She was monitored at the Court, blood tests were performed and she was found to be in stable health. Fluids were administered and her symptoms improved, but she was taken as a precaution for evaluation at the Washington Hospital Center at approximately 7:45 p.m.
In the last several weeks, two major events have reignited the controversy that engulfs capital adjudication in this country. First, the U.S. Supreme Court took a potentially significant step in expanding the role that federal courts play in superintending how states mete out the death penalty. Second, the New Yorker published a devastating article by David Grann about the execution of Cameron Todd Willingham, a man convicted and capitally sentenced for his children's murder on the basis of junk science and a mentally troubled jailhouse informant. Each of these events called attention to what the public perceives as our capital punishment system's signal failure -- its inability to ensure that those who are executed are actually guilty.
As the attention paid to systemic failure grows, so too does the apparent need to posthumously exonerate a capital convict. It is now fair to say that a posthumous exoneration is the pièce de résistance of death penalty opposition. But ardent defenders of capital punishment appear comfortable to defend on this territory. Justice Antonin Scalia wrote in a 2005 Supreme Court opinion that there is not "a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit." For at least two reasons I discuss below, we must be careful not to overstate the importance of posthumous exoneration.
First, our system of capital adjudication is terrifically screwed up for reasons that have nothing to do with whether a state has accurately identified a murderer in a specific case. For starters, the death penalty is not colorblind. All other things being equal, nonwhite offenders are more likely than white offenders to be executed, and offenses against white victims are more likely to be punished capitally than are offenses against nonwhite victims. Racially motivated jury selection amplifies each of these problems. That similarly situated offenders are not being sentenced the same way is troubling enough; that race frequently accounts for that difference is morally revolting.
Moreover, some jurisdictions are derelict in enforcing Eighth Amendment restrictions on capital punishment that do not involve questions of guilt. For example, although the Constitution forbids the execution of offenders who are either incompetent or mentally retarded, a number of states have systematically undermined these prohibitions by adopting overly restrictive or nonscientific tests for these clinical phenomena. Another example involves mentally ill offenders, who may be executed only if a court's charge to the jury allows it to consider whether the defendant's illness mitigates culpability. For almost two decades, Texas fought tooth and nail to carry out executions imposed under jury instructions that unconstitutionally failed to permit sufficient consideration of mitigating evidence.
The role of race, and the way states undermine capital eligibility restrictions, are two problems that have nothing to with how accurately the criminal justice system identifies murderers. The unrelenting emphasis on identifying a person who has been executed for a crime he or she did not commit runs the risk of sidelining these otherwise powerful critiques of the death penalty.
Second, attempts at posthumous exoneration in individual cases can be counterproductive because they can create what I call the "Coleman effect." In 1992, Virginia executed Roger Coleman for murdering his sister-in-law. Coleman had insisted on his innocence until his dying breath, and his sentence drew considerable attention when he appeared on the cover of Time magazine. In 2006, then-Gov. Mark Warner ordered that the DNA evidence in the case be retested using more advanced methods. Death penalty opponents hoped that, by conclusively establishing Coleman's innocence, the posthumous tests would erode the legitimacy of capital punishment in the United States. The testing had precisely the opposite effect. It conclusively established Coleman's guilt, and reinforced a competing narrative -- that government institutions effectively prevent executions of the wrongfully accused.
Ad hoc posthumous inquiry into the accuracy of capital dispositions is a high-risk endeavor. If the test comes back the wrong way, then the result only further legitimizes the death penalty. To eliminate the Coleman effect, a posthumous exoneration program would require enough money to finance testing on a large sample population, so that we can be statistically confident that some tests will establish innocence. The reason we don't have such comprehensive posthumous testing has to do with how groups that seek exonerations allocate scarce resources; these groups sensibly commit limited resources to exonerating prisoners who are still alive. There are one-off posthumous inquiries into the accuracy of specific executions, but the Coleman effect often limits the outlays that groups are willing to make for these types of investigations.
There is something unsettling about the very idea that posthumous exoneration is a burden that death-penalty opposition must assume. We don't need posthumous exonerations to tell us something that we already know from available evidence -- that considerable error inheres in the way we administer capital punishment. We know that many noncapital defendants are wrongfully convicted, and there is no reason to believe that capital adjudication is any more accurate. We know that the Innocence Project has used DNA testing to exonerate at least 17 death-row inmates, and it is inconceivable that there are not other cases that have slipped through the cracks. And we know that incompetent attorneys, junk science, false confessions, self-interested informants, prosecutorial abuse and unreliable eyewitnesses render wrongful executions a statistical certainty. In other words, we already know that we execute innocent people.
Case-by-case posthumous inquiry tells us only one thing that we don't already know: the identity of the wrongfully executed convict. But when we evaluate the institutional implications of wrongful executions, why is identity so important? Shouldn't it be enough that we know that such executions happen, and shouldn't posthumous testing be conducted comprehensively to discern trends and determine things like frequency? Justice Scalia might have been correct in pointing out that we cannot conclusively specify the identity of a wrongfully executed person, but he's certainly wrong to infer on such a basis that wrongful executions do not happen.
The hunt for the identity of a wrongfully executed person reflects the need to put a face on one particular critique of capital punishment. That hunt is admirable and, if structured the right way, well worth the cost. But the "innocence" critique need not have a face to be right, and the myriad other critiques of our perverse capital punishment system should not all stand or fall on our ability to specifically identify a wrongful execution.
Supreme Court Justice Souter will retire
A short take on the ramifications of Souter's retirement.
By Alex Koppelman, Salon
What to expect in the coming court battle
A fight over who will replace Justice Souter on the Supreme Court is inevitable: partisans on both sides will demand it.
By Alex Koppelman, Salon
Republicans: attack this woman at your peril
The White House prepares for a fight aides think they can win over Sonia Sotomayor's Supreme Court nomination.
By Mike Madden, Salon
Jeffrey Rosen, TNR and the anonymous smears against Sonia Sotomayor
Jeffrey Rosen's New Republic smear of Sonia Sotomayor's intellect and character is such a model of shoddy, irresponsible, and (ironically enough) intellectually shallow "journalism" that it ought to be studied carefully.
By Glenn Greenwald, Salon
Associate Justice of the U.S. Supreme Court - Sonia Sotomayor
The official report on Sonia Sotomayor from the United States Senate Committee on the Judiciary, including live webcasts of the nomination proceedings.
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