Wednesday, February 20, 2013

Has The Supreme Court Become Irrelevant?

Has the Supreme Court become irrelevant? Is it still a reliable check or balance on the other two branches of Government? Have the justices been bought by large multinational corporations interested only in making bigger profits? Under the guise of judicial review, is the Court playing politics or just simply legislating?
Judicial Review was intended to be a way of checking and balancing. Fragmentation of the various departments of government was designed into the system by the Founding Fathers. However, if one-third of of the Federal Government is asleep at the switch or has been financially compromised then the American people become the sheep for corporate wolves.
The power of the Supreme Court is obvious, but the Court has become fractured and splintered. Frequent dissents and occasional concurrences have become the new norm. Our Supreme Court today looks more and more like nine little law offices, each with a slight dependance on the others.
Did Chief Justice Roberts sellout the country and future generations of Americans when he casted the  swing vote in a 5-to-4 split decision to rule that The Affordable Care Act (Obamacare) is constitutional?
 The Supreme Court reviews about 10,000 petitions annually in regular conferences. About 100 are selected for further judicial consideration. In this filtering process, the votes of four justices are needed to advance a case.

The Justices do not write their own opinions, nor do they select the cases that apply for review. the Justices rely upon their clerks. These are recent law school graduates from a select few ivy league law schools. Clerks typically serve a year and then move on to more lucrative pastures. Clerks also do legal research and many times write the first draft of a Justice's decision in a case under consideration. If a petition is not selected for review it may have a lot to do with the politics, prejudices, gender of the clerks who reviewed the petition.

The U.S. Supreme Court refused to hear the appeal of Coast Guard Cadet Webster Smith. The justices declined to hear the case without comment. The decision of the Court of Appeals for the Armed Forces (CAAF) became the final decision in the case. 
That was a shame because the military justice court-martial and the appeal system are not race neutral. A seemingly race neutral system operated to deny Cadet smith the equal protection of the law. Institutional racism and racial profiling operated in a culture that evolved under the system of slavery and reduced Webster Smith to a stereotype and disproportionately predetermined that he would be convicted and would not prevail on appeal.

Most Supreme Court watchers had expected the Supreme Court to hear the case or at the very least to give an explanation of why not.

This case implicated a deep federal circuit conflict regarding the standard of review that applies when a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause. The Court of Appeals for the  Armed Forces (CAAF) held that the standard of review is abuse of discretion rather than de novo. Applying the former standard, the court rejected Webster Smith’s Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided Over What Standard Of Review Applies To Confrontation Clause Claims Like Webster Smith’s. The CAAF employed abuse-of-discretion review in resolving Smith’s Sixth Amendment challenge to the military judge’s restriction on the defense’s cross-examination of SR. That approach conflicts with the holdings of five circuits, which consider comparable

Confrontation Clause claims de novo, reserving abuse-of-discretion review for non-constitutional challenges. For example, the Seventh Circuit has stated that “[o]rdinarily, a district court’s evidentiary rulings are reviewed for abuse of discretion.
However, when the restriction [on cross-examination] implicates the criminal defendant’s Sixth Amendment right to confront witnesses against him, ... the standard of review becomes de novo.

The Question Presented Was Recurring And Important, And The Smith Case Was A Good Vehicle For Deciding It.

The circuit conflict at issue warranted resolution by the Supreme Court. The constitutionality of restrictions on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established; there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".

The Webster Smith case presented a good vehicle to resolve the circuit conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent with the Sixth Amendment, Webster Smith would have prevailed.

Justice truly was not served in this case. American justice has been given a black eye. All American citizens cannot expect the equal protections of the law guaranteed by the United States Constitution. Even those who put on the uniforms of the Armed Forces of the United States of America and swear to defend and to protect the Constitution cannot rely upon its legal guarantees. The Case of Webster Smith is but one grain of sand upon the beaches of American justice. 

 The Supreme Court will take up California's ban on homosexual marriage. The justices will review a 9th Circuit Appeals Court ruling that struck down California's homosexual marriage ban. The issue before the justices concerns California's Proposition 8, the state constitutional ban on homosexual marriage that voters adopted in 2008 after the state Supreme Court ruled that homosexual Californians could marry.
 The other issue the high court will take on involves a provision of the Defense of Marriage Act, known by its acronym DOMA, which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.

Citing the principle of equality that drove the nation's founding, President Barack Obama spoke out Friday, March 1, 2013 against California's ban on gay marriage and said the Supreme Court should strike it down.
A day after his administration filed a friend-of-the-court brief unequivocally calling on the justices to strike down California's Proposition 8 ballot measure, Obama said he felt there was no way for his administration to avoid the case.
"I felt it was important for us to articulate what I believe and what this administration stands for," the president said.
 "I think this is a profoundly positive thing," Obama said in a White House news conference.
 This marks the first time a U.S. president has urged the high court to expand the right of homosexuals and lesbians to wed.
Obama said the brief didn't explicitly argue that gay marriage should be made legal in every state because the case before the court deals specifically with California.
"That's an argument that I make, personally," Obama said. "The court may decide that if it doesn't apply in this case, it probably can't apply in any case. There no good reason for it."
  The federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.
The Obama administration abandoned its defense of the act in 2011, but the measure will continue to be federal law unless it is struck down or repealed. (So much for an oath to defend and protect and to uphold the Constitution of The United States.)

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