The Supreme Court ruled today that a tax credit to school tuition organizations does not impact a tax payer and thus does not warrant giving the tax payer a standing with the court for bringing a case. The court's decision says that allowing a tax credit to a religious school does not constitute government endorsement of a religion, and does not violate the Constitutional proscription against the establishment of religion. This ruling does allow religious groups to direct money to their particular group and to receive a dollar for dollar deduction in their tax obligation. And this in no way is harmful, detrimental nor an imposition upon other tax payers (according to the Court, it appears).
Now I am not particularly bothered by people donating money to an educational organization, especially if it is limited to rational amounts, by rational I would see $500 to $1,000 dollars as reasonable upper limits. And yes, I am sure that most of the people who take advantage of this tax credit are getting an off-set on their tuition costs with the same said school tuition organizations for their respective children. Yes, it is a form of governmental support of religious organizations, and by many standards that is a violation of the First Amendment as interpreted by the Supreme Court over the last half century or so. That some of our strict original interpretation-ists justices are able to perform the mental gymnastics required to score a perfect landing on this decision, well that is just another illustration of the wonders that the human mind is capable of when it wants to justify its actions.
My issue with the justices is that their logic is flawed, and worse it is so obviously flawed. Oh, not on a legal basis explicitly (but there is the mental pivoting that they have to do there), but on the reality basis. I guess that it is possible that Supreme Court justices don’t have to abide by the physical laws of reality, but you would think they would not want to render a judgment that so easily exposes their lack of intelligence and common reasoning.
Let’s suppose that we take the justices’ decision and do the good-ole what-if analysis. You know, let’s see where it leads us and see if you think the justices are floating free of reality and un-tethered to logic.
The justices claim that a tax credit by one tax payer for something like a tuition donation does no harm to another tax payer. Note: they did not claim that the harm it did is minor or inconsequential; but that it had no import to the other tax payer. Thus they have no reason to be admitted to appeal to the government/courts to redress the harm.
Now let’s remove the limit of the donation; something the justices did not indicate was of consequence and thus we are free to modify without effect (their ruling would still apply). The donating tax payer determines that they will owe $10,000 in tax and will thus donate $10,000 to the school tuition organization. The donating tax payer will thus owe $0 in tax. Nothing!
But the other tax payers in the state (or country if we went national), would have to make up for that ‘missing’ state income. Now I know that $10,000 averaged over a large number of tax payers would not have a huge impact on any single individual, but it is a real impact since it is other than zero. It’s not Nothing!
Wait! There are other individuals who avail themselves of the school tuition organization tax-credit. So there is not one person but perhaps many. What if there were 10,000 donating tax payers. All of whom pay Nothing in taxes to the state/nation. That’s $100M dollars!! Even to a Supreme Court justice, I suspect that this is starting to sound like real-money. And if we turn to the other tax payers who have to cover the check then they may actually be impacted in some noticeable way, noticeable even to a Supreme Court justice.
Now to drive it home just a little more, let’s take all the tax-payers of a state except one. And let’s make the one, say the Supreme Court justice him/herself. Surely the justice would find if reasonable and rational for the entire tax burden of their state (or of the nation for that matter) to fall entirely upon their wallet. In fact, I think we need to tell Congress that we have a solution to their problem. We can solve the national budget problem, and everyone (except Supreme Court justices) will be fine. We just put the entire tax burden upon them. It can’t be illegal because they would have no standing for a law suit.
God, I hope no one in Congress reads this! They are just about bright enough to think this is a good idea. We already know that the justices think it is (except for the dissenters).
I think the blog at http://dyn.politico.com/members/forums/thread.cfm?catid=2&subcatid=7&threadid=5281305#5281305 might have been useful here.
Showing posts with label supreme court. Show all posts
Showing posts with label supreme court. Show all posts
Monday, April 4, 2011
Friday, April 1, 2011
Sub-preme Court-ing: an Exercise in Ignorance
Given the intense and exhaustive (and exhausting) scrutiny Supreme Court justices receive before and during their confirmation hearings, I always want to believe that the country is fortunately getting individuals who regardless of political bent are some pretty high caliber intellects, at least in the legal arena. And while I don’t always think they have rendered the best decision on those cases that I pay any attention to, I usually feel they have made reasonable, rational and realistic judgments and decisions of those cases.
So I am just a tad anxious about the media’s reports on and political/policy wonks’ interpretations of statements made by various justices in the oral arguments presented in the Wal-Mart sex-discrimination class-action case. The quoted questions asked and comments made in response to answers would indicate that the justices are in the deep-end of the pool on this case. I think they are apparently over their heads because to apply their vast knowledge and insight into the law and the applicable Constitutional areas that would inform their deliberation and decision, the justices must also be competently conversant in and comprehending of the science and mathematics that would provide a critical aspect of the case and for serving as a basis for reaching an informed decision.
This case may rely more critically upon an understanding of the scientific analysis of the situation than directly upon the applicable law or the Constitution. And from the questions, it may be that in this case that the justices are ill-equipped to appreciate their own deficiencies. That the plaintiffs’ and the defendant’s legal teams may be equally in the dark or in even darker regions of the intellectual universe, doesn’t provide the justices with guides who can navigate the justices through the esoteric jungle that they must traverse. The competency with which the justices are able to understand the context of the case is just as important to the specific issue that the Supreme Court is focused on at this time, which is whether it is reasonable for a class-action case of over a million women to justifiably be applied in a discrimination claim.
This case may well become a case-study for future legal studies in how an abundance of understand and skill in the law proves impotent and ineffective in understanding and resolving the dispute which rests first and foremost on data, its interpretation and its comprehension. Oddly, both legal teams will probably use data and an interpretation of it; but they are unlikely to comprehend it or to recognize their short-fall of understanding. In the end, the justices will retire to adjudicate the case based on their individual understands and biases, and upon the information presented whether meaningful or not. And from this murky and infrequently visited domain of scientific understanding, the justices will render their decision. Based on that decision, the country will follow a legal precedence that will direct the path that individual freedoms with respect to corporate power will have travel for years to come.
We cannot expect the justices to be perfect in each and every case; not the least because that would be impossible given the large groups of people who support one side or the other of the opposing positions in the cases themselves. But can we as citizens feel comfortable that American justice is becoming increasingly vulnerable to decisions that are made by a Supreme Court that is second to none in their expertise in jurisprudence, but who may be excessively ignorant about the true facts of the case that they judge?
I don’t know if there is a way to avoid this inherent vulnerability; but I think we should seek a way to provide a modern day ‘checks and balances’ solution to these situations. I am not proposing a diminishing of the power or authority of the Supreme Court, but rather that it might be prudent for the Supreme Court to have access to advisory resources that are responsible for independent and impartial analysis and interpretation of technical, scientific and analytic information presented in cases brought before them.
The best chance for justice depends upon both knowing the facts and on understanding them. Without either, no decision can be depended upon to serve the interests of the nation nor to protect our freedoms.
So I am just a tad anxious about the media’s reports on and political/policy wonks’ interpretations of statements made by various justices in the oral arguments presented in the Wal-Mart sex-discrimination class-action case. The quoted questions asked and comments made in response to answers would indicate that the justices are in the deep-end of the pool on this case. I think they are apparently over their heads because to apply their vast knowledge and insight into the law and the applicable Constitutional areas that would inform their deliberation and decision, the justices must also be competently conversant in and comprehending of the science and mathematics that would provide a critical aspect of the case and for serving as a basis for reaching an informed decision.
This case may rely more critically upon an understanding of the scientific analysis of the situation than directly upon the applicable law or the Constitution. And from the questions, it may be that in this case that the justices are ill-equipped to appreciate their own deficiencies. That the plaintiffs’ and the defendant’s legal teams may be equally in the dark or in even darker regions of the intellectual universe, doesn’t provide the justices with guides who can navigate the justices through the esoteric jungle that they must traverse. The competency with which the justices are able to understand the context of the case is just as important to the specific issue that the Supreme Court is focused on at this time, which is whether it is reasonable for a class-action case of over a million women to justifiably be applied in a discrimination claim.
This case may well become a case-study for future legal studies in how an abundance of understand and skill in the law proves impotent and ineffective in understanding and resolving the dispute which rests first and foremost on data, its interpretation and its comprehension. Oddly, both legal teams will probably use data and an interpretation of it; but they are unlikely to comprehend it or to recognize their short-fall of understanding. In the end, the justices will retire to adjudicate the case based on their individual understands and biases, and upon the information presented whether meaningful or not. And from this murky and infrequently visited domain of scientific understanding, the justices will render their decision. Based on that decision, the country will follow a legal precedence that will direct the path that individual freedoms with respect to corporate power will have travel for years to come.
We cannot expect the justices to be perfect in each and every case; not the least because that would be impossible given the large groups of people who support one side or the other of the opposing positions in the cases themselves. But can we as citizens feel comfortable that American justice is becoming increasingly vulnerable to decisions that are made by a Supreme Court that is second to none in their expertise in jurisprudence, but who may be excessively ignorant about the true facts of the case that they judge?
I don’t know if there is a way to avoid this inherent vulnerability; but I think we should seek a way to provide a modern day ‘checks and balances’ solution to these situations. I am not proposing a diminishing of the power or authority of the Supreme Court, but rather that it might be prudent for the Supreme Court to have access to advisory resources that are responsible for independent and impartial analysis and interpretation of technical, scientific and analytic information presented in cases brought before them.
The best chance for justice depends upon both knowing the facts and on understanding them. Without either, no decision can be depended upon to serve the interests of the nation nor to protect our freedoms.
Wednesday, March 16, 2011
A Supreme Strategy for Protecting America
One of the most vital elements of America’s democracy emerges from the interaction and interplay of two fundamental principles crafted into our Constitution: “Separation of Powers” and “Checks and Balances”. Under these principles, the Founding Fathers promoted a contention and struggle for power and control between and among the various branches of government. Under this system, the branches have chiseled and sculpted their powers in accordance with the strictures of the Constitution itself and in response to the evolving needs and challenges of the changing nation and its changing needs.
Politics has always been a factor in each branch, but in many ways the Supreme Court was established on a foundation that implicitly strove to limit and even deter the other branches from being able to force political agendas onto and into the court. By granting appointed justices with tenure for life, the justices are not vulnerable to the urges of the day or to the powers who appointed them for preserving their position and status. They can adhere to their principles and understanding of the Constitution and the laws of the land without fear that an unfavorable view of their decision is not a political or career death sentence.
Unfortunately, politics is an ever prowling predator seeking to render its prey no matter how well defended. With each appointment of a new justice, the beast politic roams ever closer to the process; and perhaps has downed a victim or two that could not evade the pride’s attacks. It is not surprising then that natural selection has evolved the candidate pool to possess those traits that help promote their survival of the back-ground checks and the ‘advise and consent’ gladiatorial trial by fire. The breed now knows not to have an opinion on various topics, and to not talk about abstract issues but to insist that the merits of the particular case and the applicable Constitutional articles that apply.
But if the beast is allowed to win, then two of the founding principles are compromised and the protection of our democracy is weakened. So how do we survive the intrusion of politics into the Supreme Court? The justices themselves must defend their branch’s integrity and authority. Once appointed each justice needs to accept that the Congressional gauntlet that they passed is meaningless and has no substance or importance to them. Their obligations are to applying their own best understanding of the Constitution and our laws to the issues and cases that they review. The Constitution is not intended to be Democrat or Republican, conservative or liberal, states’ rights or federal powers, nor should it be constrained by some litmus test standard that appeals to some members of Congress and/or the public.
The challenge of preserving the independence of the Court rests with its members placing their duty, their intellect and their passion to serving the nation above a political orientation that is meant to be a competing force that focuses the issues of the day driving the legislative and executive branches efforts to meet public needs. A Supreme Court justice should be completely willing to render their decision in accordance with their best understanding of the Constitution and law with full knowledge that it will shock and anger their most ardent supports who expected adherence to some view of their own.
Politics has always been a factor in each branch, but in many ways the Supreme Court was established on a foundation that implicitly strove to limit and even deter the other branches from being able to force political agendas onto and into the court. By granting appointed justices with tenure for life, the justices are not vulnerable to the urges of the day or to the powers who appointed them for preserving their position and status. They can adhere to their principles and understanding of the Constitution and the laws of the land without fear that an unfavorable view of their decision is not a political or career death sentence.
Unfortunately, politics is an ever prowling predator seeking to render its prey no matter how well defended. With each appointment of a new justice, the beast politic roams ever closer to the process; and perhaps has downed a victim or two that could not evade the pride’s attacks. It is not surprising then that natural selection has evolved the candidate pool to possess those traits that help promote their survival of the back-ground checks and the ‘advise and consent’ gladiatorial trial by fire. The breed now knows not to have an opinion on various topics, and to not talk about abstract issues but to insist that the merits of the particular case and the applicable Constitutional articles that apply.
But if the beast is allowed to win, then two of the founding principles are compromised and the protection of our democracy is weakened. So how do we survive the intrusion of politics into the Supreme Court? The justices themselves must defend their branch’s integrity and authority. Once appointed each justice needs to accept that the Congressional gauntlet that they passed is meaningless and has no substance or importance to them. Their obligations are to applying their own best understanding of the Constitution and our laws to the issues and cases that they review. The Constitution is not intended to be Democrat or Republican, conservative or liberal, states’ rights or federal powers, nor should it be constrained by some litmus test standard that appeals to some members of Congress and/or the public.
The challenge of preserving the independence of the Court rests with its members placing their duty, their intellect and their passion to serving the nation above a political orientation that is meant to be a competing force that focuses the issues of the day driving the legislative and executive branches efforts to meet public needs. A Supreme Court justice should be completely willing to render their decision in accordance with their best understanding of the Constitution and law with full knowledge that it will shock and anger their most ardent supports who expected adherence to some view of their own.
Sunday, May 16, 2010
Vapid and Hollow: Candidate or Congress?
A gauntlet has been thrown down, a supreme challenge has been made, and a duel to the death has been called for. Is this a World Wrestling Championship steel cage challenge, a Food-Network throw-down with Bobby Flay, or an Olympic grudge match between two life-long competitors? No, it’s the most recent Supreme Court nomination of Elena Kagan.
Kagan has written that the confirmation process has become a “vapid and hollow charade” without value or substance. A position that I have to agree has become the modus operandi of the Congressional confirmation process. An activity that is not only engaged in brazen political posturing for party-defined reasons but which is actively destructive to the interests of the American public.
The Republican Senator John Kyl of Arizona said that he was concerned about appointing someone to a life-time position on the court who had the absolute final word on issues brought before the court. I hope he understands that that is not true. He as a representative of the people is specifically authorized to put forth either appropriate law consistent with the Constitution to achieve the results that he believes are needed, or to even sponsor an Amendment to the Constitution. The Supreme Law of the Land is administered by the Supreme Court; but it is ultimately the Will of the People that determine what the Supreme Law of the Land is.
And was the challenge made by the Senate Judiciary Committee leadership? No, it was made, perhaps without expectation that it would become applicable to herself, by the nominee when she worked as a staff lawyer for the Judiciary Committee. So while not made by the people’s representative body that is charged with the responsibility for ‘advise and consent’ on the approval of Supreme Court justices, the challenge exists; but will it be accepted? Will Congress fulfill their responsibility? Will they do their duty to serve the interests of the people and our democratic and Constitutional principles in approving or rejecting the nominee? Or, will Congress put on another Party-centric, ideological, self-serving image-promoting farce where the measure of success will be the number of minutes of media coverage that individual Congressional members will receive? And will the media support this dismal display of vacuous content without attempting to exert itself enough to even comment on their own lack of insight into the lack of meaning or insight on the part of the politicians?
Perhaps we will be surprised this time. Perhaps, either the nominee, a member of Congress (or two), or both will step forward and do something meaningful; if for no other reason than to demonstrate to the American people (and even their colleagues) that they possess a sense of history, of responsibility, maybe even a degree of intellect or of understanding the essential role fulfilled by an independent judiciary.
For Congress’ players in this theater, they (or their staff) would have to craft questions that are central to gaining an appreciation of what perspective the nominee has on the role and obligations of Supreme Court justices, on how they view and comprehend the rational, justifications, and basis of current law and current precedents and ruling of prior Supreme Court cases. Congress might even ask the nominee whether any decision by the Supreme Court could be anything but ‘activist judicial’ action.
For the nominee, she could engage both the public and Congress in her responses the Committee questions. First, besides responding to her inquisitors, she could talk to the media and the public as she is answering the questions being asked. Second, she could analyze and critique the quality of the questions in the manner in which she responds. She would of course want to do so in a polite and respectfully manner, even in cases where the questioner is unaware of their own lack of propriety in acting on behalf of the American public.
What America needs and deserves is a procedure and process which shows that the participants properly recognize their responsibility to the American people, to our Democratic principles, and to the spirit of governmental institutions that serve the rights and liberties of a freedom loving citizenry.
Kagan has written that the confirmation process has become a “vapid and hollow charade” without value or substance. A position that I have to agree has become the modus operandi of the Congressional confirmation process. An activity that is not only engaged in brazen political posturing for party-defined reasons but which is actively destructive to the interests of the American public.
The Republican Senator John Kyl of Arizona said that he was concerned about appointing someone to a life-time position on the court who had the absolute final word on issues brought before the court. I hope he understands that that is not true. He as a representative of the people is specifically authorized to put forth either appropriate law consistent with the Constitution to achieve the results that he believes are needed, or to even sponsor an Amendment to the Constitution. The Supreme Law of the Land is administered by the Supreme Court; but it is ultimately the Will of the People that determine what the Supreme Law of the Land is.
And was the challenge made by the Senate Judiciary Committee leadership? No, it was made, perhaps without expectation that it would become applicable to herself, by the nominee when she worked as a staff lawyer for the Judiciary Committee. So while not made by the people’s representative body that is charged with the responsibility for ‘advise and consent’ on the approval of Supreme Court justices, the challenge exists; but will it be accepted? Will Congress fulfill their responsibility? Will they do their duty to serve the interests of the people and our democratic and Constitutional principles in approving or rejecting the nominee? Or, will Congress put on another Party-centric, ideological, self-serving image-promoting farce where the measure of success will be the number of minutes of media coverage that individual Congressional members will receive? And will the media support this dismal display of vacuous content without attempting to exert itself enough to even comment on their own lack of insight into the lack of meaning or insight on the part of the politicians?
Perhaps we will be surprised this time. Perhaps, either the nominee, a member of Congress (or two), or both will step forward and do something meaningful; if for no other reason than to demonstrate to the American people (and even their colleagues) that they possess a sense of history, of responsibility, maybe even a degree of intellect or of understanding the essential role fulfilled by an independent judiciary.
For Congress’ players in this theater, they (or their staff) would have to craft questions that are central to gaining an appreciation of what perspective the nominee has on the role and obligations of Supreme Court justices, on how they view and comprehend the rational, justifications, and basis of current law and current precedents and ruling of prior Supreme Court cases. Congress might even ask the nominee whether any decision by the Supreme Court could be anything but ‘activist judicial’ action.
For the nominee, she could engage both the public and Congress in her responses the Committee questions. First, besides responding to her inquisitors, she could talk to the media and the public as she is answering the questions being asked. Second, she could analyze and critique the quality of the questions in the manner in which she responds. She would of course want to do so in a polite and respectfully manner, even in cases where the questioner is unaware of their own lack of propriety in acting on behalf of the American public.
What America needs and deserves is a procedure and process which shows that the participants properly recognize their responsibility to the American people, to our Democratic principles, and to the spirit of governmental institutions that serve the rights and liberties of a freedom loving citizenry.
Thursday, January 21, 2010
The Supremes Hit A Sour Note
The US Supreme Court made a major ruling today on campaign financing law. They restored the rights of corporations and labor unions to contribute funds on par with any other private citizen. The limitations that had been in-effect that restricted their contributions was deemed a violation of their free-speech rights. This decision reverses a century of Supreme Court established rules that was viewed as protecting the private citizens against the undue influence that corporations and labor unions could leverage against individuals with no-where near their resources. That interpretative view had persisted under Supreme Courts that favored Republican and Democratic appointed members.
So I want to join in with all the rest of you in celebrating this grand victory for the corporations. I have fretted for years at their lack of influence in Washington. Finally, they will be able to choose your legislators and leaders, I mean join with you in helping your choose them. No longer will they be excluded from the back-rooms and closed door meetings that you and I are allowed to attend and that they are not. Wait! I don’t remember any Administration task-force or any Congressional committee letting average citizens into their deliberations (or inequitable distribution of funding). Well at least, they have never let corporate and labor union leaders participate in such meeting either. We have never had to worry about nor heard about the improper influence that Congressmen or Administration officials have allowed corporations or labor unions.
I am sure that this day will be remembered and celebrated in coming years as a re-affirmation of free-speech and basic American rights just like we celebrate the 4th of July. That is if the corporations and labor unions what us to, otherwise they will have their personally selected politicians entertain us with some other critical and essential issue that is of no importance or impact to their interests. Of course, we free citizens can also contribute to the political campaigns of our preferred candidates, who will no doubt pay as much attention to our views as they will to the super-huge donors that are now free to express their views on what is important and what needs to be addressed in legislation and administration of our government.
I would like to have one thing changed in the system however. Since corporations and labor unions have equal status as individuals under the law that given the absence of a corporeal entity who is treated according to the same legal consequences that you or I would, that the CEO or President of these entities be held accountable to the same legal consequences that you or I would. So if the corporation or union was found guilty of a criminal action that would have you or I put to death then as the stand-in individual for these non-living citizens that they would be executed on the corporations’/unions’ behalf.
If this one rule were put in place then I suspect that corporate executives and union leaders would be vigorously advocating that they should not be treated as citizen-equals who can spend money that is not even their own to influence the politics of the country. I suspect that corporations and unions would be willing to trust in the wisdom and judgment of the citizenry and the electorate.
And now that I think of it, why aren’t corporations and labor unions already properly and adequately represented by the citizenry and electorate that well own and constitute these entities. Don’t these individuals already have the right to fund political campaigns and to exercise their right to free-speech?
Isn’t letting corporations and unions participate in politics given some people extra rights, above and beyond those of most other citizens? Is this really protecting my freedoms? Well, as long as I am one of the people benefiting from the advantage and getting more rights than the rest of you, it will be ok with me. Otherwise, no, I don’t approve.
So I want to join in with all the rest of you in celebrating this grand victory for the corporations. I have fretted for years at their lack of influence in Washington. Finally, they will be able to choose your legislators and leaders, I mean join with you in helping your choose them. No longer will they be excluded from the back-rooms and closed door meetings that you and I are allowed to attend and that they are not. Wait! I don’t remember any Administration task-force or any Congressional committee letting average citizens into their deliberations (or inequitable distribution of funding). Well at least, they have never let corporate and labor union leaders participate in such meeting either. We have never had to worry about nor heard about the improper influence that Congressmen or Administration officials have allowed corporations or labor unions.
I am sure that this day will be remembered and celebrated in coming years as a re-affirmation of free-speech and basic American rights just like we celebrate the 4th of July. That is if the corporations and labor unions what us to, otherwise they will have their personally selected politicians entertain us with some other critical and essential issue that is of no importance or impact to their interests. Of course, we free citizens can also contribute to the political campaigns of our preferred candidates, who will no doubt pay as much attention to our views as they will to the super-huge donors that are now free to express their views on what is important and what needs to be addressed in legislation and administration of our government.
I would like to have one thing changed in the system however. Since corporations and labor unions have equal status as individuals under the law that given the absence of a corporeal entity who is treated according to the same legal consequences that you or I would, that the CEO or President of these entities be held accountable to the same legal consequences that you or I would. So if the corporation or union was found guilty of a criminal action that would have you or I put to death then as the stand-in individual for these non-living citizens that they would be executed on the corporations’/unions’ behalf.
If this one rule were put in place then I suspect that corporate executives and union leaders would be vigorously advocating that they should not be treated as citizen-equals who can spend money that is not even their own to influence the politics of the country. I suspect that corporations and unions would be willing to trust in the wisdom and judgment of the citizenry and the electorate.
And now that I think of it, why aren’t corporations and labor unions already properly and adequately represented by the citizenry and electorate that well own and constitute these entities. Don’t these individuals already have the right to fund political campaigns and to exercise their right to free-speech?
Isn’t letting corporations and unions participate in politics given some people extra rights, above and beyond those of most other citizens? Is this really protecting my freedoms? Well, as long as I am one of the people benefiting from the advantage and getting more rights than the rest of you, it will be ok with me. Otherwise, no, I don’t approve.
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