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Tuesday, June 29, 2010

Questions for Kagan

These are questions for Kagan.

On PBS News Hour, you were quoted as saying that you consider a prior decision by the supreme court to be a fixed decision, and that we must honor the prior decisions as a fundamental point of our legal system. "Once the court has decided a case, it is binding precedent, and I think that is an enormously important principle of the legal system, that one defers to prior justices or prior judges who have decided something,  and that its not enough, even if you think something is wrong, to say "oh well, that decision was wrong, they got it wrong"

Based on this, I have these questions.

1. Should "Separate but equal" have been overturned?
2. Should Austin have been overturned by Citizen's United?

3. To what extent do you consider any past issue, no matter how badly determined, to be open for re-examination?

4. Where do you see the boundary between the legislative authority of the legislative branch of government, as set in article one, and the judicial authority of the courts to create new rules?
To what extent do you believe in the early 1800's view of "strike down a bad law, but do nothing else; let congress create a new law", and to what extent do you believe in "Strike down a bad law, and put a new law in its place"?

5. Consider a specific case. This is a (hypothetical) case: It was brought in trial court, challenging the validity of Citizen's United. It was thrown out by the trial court, claiming a lack of authority to examine and overrule the supreme court. This was upheld by the appeal court, and now comes to you.

The specific claims in this case are:
A: While no challenge is made to the view that the two regulations examined were excessive and stifling, the remainder of the decision has numerous logical errors, and business behavior/tax law errors. Based on these, the overturning of Austin is not justified. (Assume several detailed examples are given in the lawsuit.)
B: The decision by the court to go beyond the narrowest possible ruling failed to properly give interested parties a chance to submit briefs and opinions on the issue; as such, the subject was not properly understood by the court. Based on this, the overturning of Austin is not justified. (NB: this is similar to Steven's dissension).
C: While the balance between the two rights -- free speech (amendment 1) and a fair election without undue distortion (amendment 9) -- may be in dispute, the court had no authority to throw one of those rights completely out the window. Based on that, the overturning of Austin is not justified.
D: While the court has authority to strike down bad laws and regulations, it lacks the authority to create new ones, including one that gives no limit to corporate rights and privileges. That authority is, by article one, solely in the hands of the legislative branch, not the judicial. As such, the court exceeded its authority in striking down Austin.
E: The claim that the 14th amendment "rights of people in state courts" applies to corporations is flawed in that the word "people" does not mean "corporation" in the rest of the amendment, including population and representation, and as such, that declaration by the courts is flawed, even if Austin is properly struck down.

How would you rule?
1: The decision by the court will not be re-examined. The trial court was right to throw it out. (But then, why was it allowed to re-examine Austin?)
2: The trial court was wrong to throw the case out. It must be re-examined. (But then, to what extent is a prior decision binding, even if you think it was wrong? What separates a "think its wrong, leave it as is", and "it really is wrong, change it" case?)
3: The prior court decision violated protocol, rules, and procedure. While the actual ruling might not be wrong, it was reached in a wrong way, and as such, must be voided. (Does the SCOTUS have such authority?)
4: The prior court decision may have violated such rules, and the trial courts must examine whether the SCOTUS ruled appropriately, or not. (But does this mean that only the procedure may be examined, and not the validity of the logic and business tax law claimed in the decision).
5: Something else. What, and why?

6. Consider this question carefully. It has to do with the recent gun decisions and the second amendment versus the 9th amendment, and the question of, "Does the SCOTUS have the authority to alter the constitution?". I hope you agree that it does not.

The recent court ruling found a second amendment right of individuals to have guns for self defense. This ruling is challenged, as follows: The second amendment, as written, only permits that the militia of the states to own guns without interference by the federal government. Any other interpretation is a plain text misreading of the second amendment. Note that the term "militia" is not defined by this; according to the 10th amendment, it can only be defined by the states or the people. It explicitly cannot have any British common law definition, nor can it be defined by the federal courts.

Now, this is a plain text reading of the second amendment. It does not agree with many court decisions. Based on this, a claim is made that the courts have modified the constitution in their decisions, and as such, those decisions are unconstitutional.

1. How would you rule, and why?
2. To what extent can a decision by the courts restrict a valid plain text reading of the constitution?
3. To what extent does the 10th amendment limit the authority of the federal government and federal courts?
4. If an individual does have a right of gun ownership for self defense, and that individual is not in the state militia, does that right come from the second amendment, or from the 9th? If the 9th, was this properly considered by the courts, or was a potential lack of submitted briefs and opinions enough to require reconsideration in a later ruling?
5. To what extent does the court have the authority to modify the constitution? What is the limit of a valid court ruling?

This was submitted to California Senator Feinstein, Tuesday the 29th at 9 pm.


chumgrinder said...

5. And would you agree with the impeachment of your colleague Sonya Sotomayor, for saying precisely the same thing about the Heller ruling SPECIFICALLY, and then (once safely on the bench) writing in her opinion on McDonald v. Chicago that Heller was decided wrongly and should be overturned?

Michael Gersten said...

Let me see if I understand what you are saying correctly, because I am not familiar with this case.

Are you saying that Sotomayor said, prior to being confirmed, that Heller was a valid decision that should not be overturned, and once confirmed changed this to say that Heller was not a valid decision and should be overturned?

If that's what you are saying, then there's plenty of valid reasons for a change of opinion like that.

However, I would say that this would call for a vote to impose the 14th amendment procedure to remove her.

Now, I'm not saying, "Remove her". It takes at least two votes -- one to begin the procedures of the 14th amendment, which presumably include some sort of accusation and rebuttal, and then a second vote afterwards to confirm removal. There may be other issues involved as well. I don't know the procedures; as far as I know, they were written around the time of the civil war, and might be revised if they were to be used again.

I'm also not saying, "Definitely subject her to the 14th amendment procedures, even if we don't get rid of her".

I'm saying, "Lets take a vote: Does this look suspicious enough on the surface that we need to take a closer look"?

It's entirely possible that she could say something like "I read paper such-and-such, and it changed my mind on the subject". And that's valid.

But the question is, did she lie to congress to get the job, and if so, should she be removed for falsifying information on her job application?