Supreme Court, Scalia, Anthony Kennedy discussed on Law and Disorder


Well, there are international tribunals that can have something to say about this and can have some influence on events not perhaps with respect to this massive surveillance. But the international court of Justice is just now just in September going to deal with a case that involves the fate of the Diego Garcia military base. And the fact that the United Kingdom should never have been able to keep the island. You from becoming part of Mauritius when Marissa's got to be independent. So and that international tribunal decision may have some effect. I have testified before the inter American commission on human rights about it adequate assistance of counsel, given to a young African American man. The United States doesn't accept the compulsory jurisdiction. But it's still can have some influence on how these things work. But the fact is that the government regards itself is unaccountable to come back to your question, which respect to these fundamental questions of national security, the government regards itself is unaccountable in the Lynn Stewart case in you know, Lynn, very well. Melinda. Stewart case there were secret wiretaps, and the judge said, well, I'm going to examine these things in camera, and I looked at the regulations under which is the FBI got to give got to decide which law clerks would be entitled to look at the the judges. At the papers that the judge was looking at. I said your honor. This is not your an article three judge and you're going to let the FBI choose your law clerks. I said I personally have had some experience with a law clerks get chosen. I don't know if you read about that or not. But the fact is it's a disgrace. And but the the judge was unmoved. Yes, unmoved. Yes. And the separation going beyond separation of powers questions, supposedly Coequal branches of government. There's been a lot written in recent times since the Patriot Act and particularly in my mind. How many of the first ten amendments that Bill of rights have been eroded within the last fifteen sixteen seventeen years is that your impression is so about that a better if not tell me I full of it. Well, let's start with amendment number one freedom of speech, not so much. She wrote it as subjected to pervasive mythology that renders it of much less effective than you would have thought I have a book coming out in September mythologies of state and monopoly power. And I begin one chapter by saying walk down to the marketplace of ideas the other day, but they didn't have anything I wanted. And I went over to the side there were some actual people had some ideas, they were passing out leaflets, but the cops are running them off. So the fact is that it used to be that you could stand on the street corner and pass out leaflets it used to be if you want to organize a union you get into the plant supreme court said no goes to shopping centre. Sorry, that's private property. It looks like a city is portrayed as a city. It's a similar acronym of a city. It's a gathering place. But I'm sorry. You've got gotta stand next to the freeway and pass leaflets. We get a case like citizens. United a perfectly good supreme court Justice, Anthony Kennedy decides that corporations have first amendment rights now the supreme court when it held corporations could be criminally liable pointed out that corporations have enormous power that transcends the any private individual. But so why would you equate? The the right of the individual hand biller to that we talked about that then in back in back in the day. We had a thing called the fairness doctrine why? Because the ether the broadcast spectrum that's up there in the sky. Nobody can own it. It is a limited resource but broadcaster said known on all we owned the radio actual radio station, the hardware, and that must mean that we're the ones that communicate. And thus the supreme court's decision. The famous red lion case is no more. I don't know. If you remember that case, Fred cook was a great investigative journalist was attacked by Bill. James ARGUS, Reverend Billy James Harkess. And cook demanded the right of reply and the station said no supreme court upheld, the fairness doctrine and said he had the right of reply the now's a great case because harvest then got into trouble because of financial and sexual peccadilloes. It. He said that he had sex on with both the bride and the groom on the wedding night after he performed the ceremony. But we don't know if they each got equal time. Doctor may not have apply. Right. We're speaking with attorney Michael Tigar, Michael you've got a book that's about to come out. Would you mentioned the title of it again and tell our audience because I think they can pre-order it. And and I think they'd like to do that. What's the name of the book called mythologies of state monopoly, power and review is put it on reviewers? Putting it out. You can also get an Amazon or you can go to monthly review dot, Oregon, pre-order it. The great thing is I've some years ago became fascinated with the work of Roland bowels BART H E S, a French writer semiotics system saw on who published a book called mythologies in French mythology, including some things about the so-called Justice system. And I admired that form what bath taught us that. There are these mythologies that surround the action of power wielders to try to make us believe that what's that? It's okay. What's going on? I start the book by noting that is the guillotine blade descended in old French the executioner would cry in the name of the French people justices dum dum do perform say juicy factor. Well, no, it wasn't it all that meant. Was the state had appropriated to itself? The right to define the term called Justice. And then we look back at worker at worker rights. You were talking moment ago. Now, it was as a seventeen twenty one we've getting labor organizations for the first time in England and the organization members are prosecuted for conspiracy in restraint of trade because the judge pointed out it's all right for one individual worker to try to get his or her wages raised. But when they joined together, they are conspiring in restraint of trade, the idea that labor organization was a conspiracy in restraint of trade survived. Well into the twentieth century. Which is to say the right to bargain about things is an individual rights and not a social, right and anatomy moving in that direction again. Well, we absolutely now. Now that the right to strike exists. And the right to organize exists. What we're finding in low-wage industries pretty significant in Smithfield foods down in North Carolina. Which is where I now live and then service employees union, but let's take service employees union that is a labor organization that actively seeks to organize people in marginalized situations the hospital Houston wander their own sheets. Now, they send it all down down where low wage workers laundry, and so service employees union Teamsters union and farm workers organized a group called change to win. So what happens an employer subject to change to win campaign? Susan the racketeering statute saying that the cats are extortion. That what's happening is the unions are attempting to extort money from the employer by forcing the employer to pay more for workers wages, then they wanna pay now. Of course, Smithfield foods has to bargain with all manner of people about, you know, the the toilet soap and the toilet paper and the workers tried to do it's extortion. Those suits have not succeeded not a single one has succeeded, but they've succeeded in this way, they've sued the service employees union cintas food workers union hospital workers union all those suits are very expensive to defend. So they're they're bleeding the organizations dry. Jumped to bleed the organizations dry by making them litigated these claims. So once again. For free bargain, and hardnosed bargaining is okay until the worker show up and want to do something. Let's talk about the supreme court. Now that Justice Kennedy is leaving. And it looks like his chosen replacement Brett Kavanagh's going to step up to the job. I wanted to get your feelings about what we now have a at least a five four hard right majority on the supreme court. What kind of cases, do you think are coming up before them? And how do you think they might decide these cases are there was the original est doctrine that judge Scalia propounded? There's other doctrine Roberts said he only calls balls and strikes doesn't make the law. What do you think the supreme court now is all about? I the idea that the supreme court justices simply umpires calling balls and strikes is is on this thing coming. Okay. Okay. So bowl and that. Yes. Well, it's nonsense, and we and it's been nonsense ever since the atoms at least the Adams administration because the Adams administration. Understood that you had to control the judiciary. That's why they pass the midnight judges act. That's how we got John Marshall as chief Justice. So anybody that reads American history. No that that's just nonsense, and John Robertson believe it either. Now with respect to originalism, you know, the that too is a fiction. Because we cannot know the mindset of those folks. And even if we and some of the instant, we have about them that is to say, they own slaves, and that they saw the white men of property with the only people eligible to jury service and all the rest of that stuff that was regarded as as the the way things were at the time. The constitution was adopted. We should we don't accept anymore, and even you should be. But here's what's always fast. They may not want you to even when people point to the federalist papers they quoted with greater authority of this is that as part of an originalist idea. That's an interpretation. They're still making an interpretation. Well, and Madison himself said who knows what future generations will make make emerge that we have written exact so and that to that by the way is originalist, and it was Madison, by the way who also warned about the excesses, the executive branch saying that, you know, we we hope that we have rejected the doctrine of the old world that people that people are made for kings and not kings for people so originalism is silly. And if you wanna read some interesting, judge pose ner, just retired with the seventh circuit reviewed Scalia and Garner's book on textual and originalist consideration in the new Republic, your that's enough of you get it for a Google search, which it completely. Eviscerated the this nonsensical. So. Originalism, originalism, textual ISM is simply a cover for an agenda. That folks have everybody knows about them. I think Justice Kennedy himself, although he said from time to time he would say he was an originalist. Nonetheless wrote leading opinions on the right of gay marriage, and and all the rest of it. He wasn't really an originalist. But the the other thing though, that concerns me is people often talk about him his swing vote. And he certainly wasn't some critical cases. But his overall record was still conservative. The court has gotten more and more conservative in terms of workers rights, more and more corporate is court. Right. Absolutely. And one more thing about originalism during the debate during the oral argument in Oregon fell versus Hodges the gay marriage case Scalia asks Ted Olson, who's arguing for the petitioners when did this gay marriage become a constitutional, right? When exactly. Did that arise was at seventy and eighty seven. And also didn't that he thought that was no question regretted answer. But that question reveals something what do you mean when when did separate schools become unconstitutional was nine hundred fifty four one supremo decided Brown, no racial. Segregation is as always within to the memory to the point where the memory of man runneth, not racism has always been bad. The fact that supreme court didn't wake up to it until nineteen thirty four. Didn't mean that. That's only one it started being bad. That too is an insight into interpretation and then out to your question. The court, of course. Yes. The quarters corporate. They've they've tried to curb the power of unions again with this phony first amendment argument, and it becomes a challenge. So we ask ourselves we go up there. They're nine Justice. You ask yourself. How do I get five? With roberts. What kinds of issues likely to be able to get a vote on the right to counsel in criminal cases? He's written some interesting things. Okay. So we've got that case that's the one to whom we're speaking and. You know with Scalia. He came on the bench already made up his mind. There's no sense talking to him. All he wanted to do was interrupt. Your argument be rude to you. So we're in a badge spot. What can I say? But I want to remind you, you know. Apartheid shut down the black vote in South Africa ninety fifty three for thirty years. Those lawyers went to court every day and defended people. That's right. They kept the face and kept up to struggle. And it's also worth noting isn't it and in that same regard that that all male, and the supreme court that thought a woman had no right to choose didn't simply wake up one morning and say, jeez, we've been schmucks. Of course, she has a right to choose hundreds of thousands of people over and over again marched in the streets went to jail made it so that politics that we talk about suddenly began to turn the other way on the court. Didn't it? Oh, well, you can you can see that in a number of instances one of my favorites is, you know, after the civil rights movement became tired of suing one school district. One grade at a time nine hundred sixty February I sit in movement begins in Greensboro, and then the direct action movement. And all of a sudden the lawyers role is transformed into representing folks in criminal courts and walks the world changes and a ninety sixty nine no before then because jed jed. Kelly was still early nineteen sixty three early nineteen sixty three I think, and you can check me on this. The first wave of in cases reaches the supreme court and solicitor general Cox files on a Mikus brief pointing out how the Jim crow system was installed in the south. And so on. The court writes in opinion that basically exonerates finally gets around to writing opinion Laden sixty four after the Civil Rights Act of sixty four has passed exonerates that whole batch of people that had sat in the thousands of young people that put their bodies on the line right about civil rights. The court said, look we could go through this case by case we could look at this. But no tell you what the passage of the Civil Rights Act Bates all those prosecutions reset the clock to zero start over again. Same thing. I think would that selective service case that I talked about. Hey, one of the things I learned sitting in a law office in Washington DC was the people were ordinarily very conservative user, their their friends had young men who were subject to the draft. And you know, it's like being told you're be hanged in the morning. It just clarifies your visions..

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