Two Thirds of Americans want Supreme Court to strike down all or part of Obamacare bill

While the poll by the New York Times and CBS news finds that over two thirds favor overturning some or all of the Obama health care bill only 24 per cent said they hoped the court would affirm the entire bill as legal. A decision is expected by the end of June.

While 41 per cent wanted the court to strike down the entire bill 27 per cent wanted only the individual mandate forcing people to purchase insurance to be overturned. The mandate includes a penalty for not buying insurance. These numbers have not changed very much over recent months.

Not surprisingly Republicans were more opposed to the law than Democrats. Almost two thirds of Republicans thought the whole law should be jettisoned while 43 per cent of Democrats said all of the law should be upheld. Actually this is rather surprising because even among Democrats there is no majority for upholding the entire law.

Among independent voters a large majority of 70 per cent were in favor of seeing all or some of the law struck down. A majority even wanted to see the whole bill struck down. Only 22 per cent of the independents hoped the entire law would survive.

Whatever public opinion is most analysts think that it will have little influence on the Supreme Court decision..An article in the Georgetown Law Journal in 1910 said:“Supreme Court justices care more about the views of academics, journalists and other elites than they do about public opinion,” “This is true of nearly all justices and is especially true of swing justices, who often cast the critical votes in the court’s most visible decisions.” However the views of journalists, academics etc. are just as contradictory as those of the public so they might as well decide on the basis of their own expertise and views. After all they will probably be most influenced by those journalists and academics writing in favor of what they may tend to support in the first place. For more see this article.

A left critique of Kagan

In spite of all the criticism on the left of Bush's extension of executive privilege Obama seems to be heading in exactly the same direction to amplify his own administration's power. Kagan would seem to go along the same direction. As this article points out there are other aspects of her legal viewpoints that show she is not likely to push for the sort of liberal affirmative rights that many leftist Obama legal supporters would like. While the right may have some bones to pick with Kagan on some issues, overall she may gain support from those on the moderate right. While Dean of Harvard Law school she actually supported hiring of some conservative leaning faculty members.

CommonDreams.org
Kagan's Troubling Record
by Marjorie Cohn
After President Obama nominated Elena Kagan for the Supreme Court, he made a statement that implied she would follow in the footsteps of Justice Thurgood Marshall, the civil rights giant and first black Supreme Court justice. Kagan served as a law clerk for Marshall shortly after she graduated from Harvard Law School. Specifically, Obama said that Marshall's “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career.” Unfortunately, history does not support Obama's optimism that Kagan is a disciple of Marshall.

Kagan demonstrated while working as his law clerk that she disagreed with Marshall's jurisprudence. In 1988, the Supreme Court decided Kadrmas v. Dickinson Public Schools, a case about whether a school district could make a poor family pay for busing their child to the closest school, which was 16 miles away. The 5-justice majority held that the busing fee did not violate the Fourteenth Amendment’s Equal Protection Clause. They rejected the proposition that education is a fundamental right which would subject the statute on which the school district relied to ‘strict scrutiny.’ The Court also declined to review the statute with ‘heightened scrutiny’ even though it had different effects on the wealthy and the poor. Instead, the majority found a ‘rational basis’ for the statute, that is, allocating limited governmental resources.

Marshall asked clerk Kagan to craft the first draft of a strong dissent in that case. But Kagan had a difficult time complying with Marshall’s wishes and he returned several drafts to her for, in Kagan’s words, “failing to express in a properly pungent tone - his understanding of the case.” Ultimately, Marshall’s dissent said, “The intent of our Fourteenth Amendment was to abolish caste legislation.” He relied on Plyler v. Doe, in which the Court had upheld the right of the children of undocumented immigrants to receive free public education in the State of Texas. “As I have stated on prior occasions,” Marshall wrote, “proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.” Kagan later complained that Marshall “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences to guide him.”

Kagan evidently rejects these humanistic factors that guided Marshall's decision making and would follow a more traditional approach. This is a matter of concern for progressives, who worry about how the Supreme Court will deal with issues like a woman's right to choose, same sex marriage, "don't ask, don't tell," and the right of corporations to donate money to political campaigns without restraint. While Kagan has remained silent on many controversial issues, she has announced her belief that the Constitution provides no right to same-sex marriage. If the issue of marriage equality comes before the Court, Justice Kagan would almost certainly rule that denying same sex couples the right to marry does not violate equal protection.

There are other indications that should give progressives pause as well. During her solicitor general confirmation hearing, Kagan said, “The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding…” But the Constitution is full of affirmative rights – the right to a jury trial, the right to counsel, the right to assemble and petition the government, etc. Does Kagan not understand that decisions made by the Supreme Court give life and meaning to these fundamental rights? Is she willing to interpret those provisions in a way that will preserve individual liberties?

While Kagan generally thinks the Constitution serves to limit governmental power, she nevertheless buys into the Republican theory that the Executive Branch should be enhanced. In one of her few law review articles, Kagan advocated expansive executive power consistent with a formulation from the Reagan administration. This is reminiscent of the ‘unitary executive’ theory that George W. Bush used to justify grabbing unbridled executive power in his ‘war on terror.’

As solicitor general, Kagan asserted in a brief that the ‘state secrets privilege’ is grounded in the Constitution. The Obama White House, like the Bush administration, is asserting this privilege to prevent people who the CIA sent to other countries to be tortured and people challenging Bush’s secret spying program from litigating their cases in court.

During her forthcoming confirmation hearing, senators should press Kagan to define her judicial philosophy. Several of the radical right-wingers on the Court define themselves as ‘originalists’, claiming to interpret the Constitution consistent with the intent of the founding fathers.

I would like to hear Kagan say that her judicial philosophy is that human rights are more sacred than property interests. I would hope she would declare that her judicial philosophy favors the right to self-determination – of other countries to control their destinies, of women to control their bodies, and of all people to choose whom they wish to marry.

Kagan is likely to be circumspect about her views. She will frequently decline to answer, protesting that issues may come before the Court. We should be wary about how Justice Kagan will rule when they do.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and past President of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd). Her anthology, The United States and Torture: Interrogation, Incarceration and Abuse, will be published in 2010 by NYU Press. Her articles are archived at www.marjoriecohn.com

Guantanamo ruling-the fallout..

What is surprising is that four judges dissented. Although I guess there are quite a few Bush type conservatives on the supreme court now. I would think that many other conservative types who are concerned about human rights and also upholding the U.S. constitution would vote along with any liberals on the court. I wonder if Bush will try to pass some legislation that tries to get around this ruling. This is a big defeat for Bush.
The article claims that both Obama and McCain are for closing Guantanamo. However, the problem of what to do with the prisoners would remain. This could be a problem for whomever gets elected president.



Guantanamo ruling - the fallout
By Kevin Connolly BBC News, Washington
The long-running and so-far inconclusive battle between the Supreme Court and the Bush administration over Guantanamo Bay has been like a High School political science class brought to life.
A power struggle between two branches of government has been playing out over one of the defining issues of this presidential term.
Over the course of the last few years, the executive has had the upper hand over the judiciary.
Consider, for example, how the White House and the Pentagon managed to work their way around a previous Supreme Court decision in 2004 which appeared to guarantee the Guantanamo detainees a right of appeal to the civilian justice system.
In response to that judgement, the US government began what it called Combatant Status Reviews of the detainees and created legislation to set up military commissions - the quasi-legal bodies which have already begun hearing the evidence against the accused.
But with this latest ruling, the Supreme Court appears to have restored its authority in these matters by producing a ruling which will be much more difficult for the administration to ignore.
For example, proceedings at those military commissions may now be interrupted or suspended while lawyers defending the accused assess how best to take advantage of the new Supreme Court ruling.
All are likely to ask federal judges to assess the legality of their detention.
Huge implications
Whatever you think about the morality and legitimacy of the Guantanamo detention facility, there can be no doubting the determination of the Bush administration to stick to its policy, regardless of judicial attempts to undermine it.
The legal implications of Thursday's judgement are huge - after all, it is at least possible that it might end with American judges ordering the American government to release foreign detainees.
It means that even though the US government deliberately built this camp in an American base on the island of Cuba - so that it is not on American soil - and even though the detainees are not US citizens, they are deemed to have rights under the constitution.
The Bush argument that those rights are forfeit because America is fighting a "war on terror" was dismissed.
The nine justices of the Supreme Court split five-four on the issue with one of the dissenting conservative judges warning that the decision could make the war on terror more dangerous.
But Anthony Kennedy spoke for the majority of the justices when he argued that the US Constitution and its laws are designed to function even in extraordinary times.
The political impact of today's Supreme Court ruling may not be quite so extensive, however.
It will mean of course that the Bush administration's decision to create this unprecedented system of detention will not be remembered by history as a decisive or successful means of dealing with a terrorist threat.
It has been mired in international disapproval and undermined by legal challenges from the very start, and diplomatically at least it has been counter-productive.
It will also ensure that this issue dominates the closing months of the Bush presidency - he has already said he will abide by the court's decision while making clear that he does not agree with it.
After Bush
But the timing of the announcement really serves to draw attention to just how close we know find ourselves to the end of the George W Bush era.
At a moment like this, our attention focuses automatically on the known attitudes of the two men competing to be the next president.
As it happens, both John McCain and Barack Obama (the Republican and Democrat respectively) have talked about closing Guantanamo Bay, so much of the political and legal heat may simply evaporate from the issue a few months down the road.
That does not mean that the issue would be over, of course.
No new American president could afford to make himself look weak on terrorism by simply releasing the detainees, so there would be difficult issues to resolve which might take time.
But when Mr Bush completes his second term, there will no longer be in the White House a powerful advocate for the system at Guantanamo Bay grimly determined to find a way of keeping it open regardless of the view of the courts.
It is hard to see what form a solution will take which balances America's perception of its own security priorities against the concerns of its own senior judges.
But one prediction can now safely be made.
Guantanamo may have been created on the watch of America's 43rd President - but its fate is almost certain to be determined during the first term of its 44th.
Story from BBC NEWS:http://news.bbc.co.uk/go/pr/fr/

Wrangling over rights of Guantanamo detainees

Wow! There must not have been anything much in the way of rights for enemies seized in "war" in the newly formed US.
The government argued before Supreme Court justices that more than 300 Guantanamo Bay detainees have enjoyed greater rights than ever envisioned in such circumstances by the country's founding fathers.



Maybe the founding fathers would have thought that unlawful combatants were equivalent to slaves since they had not invented that convenient conceptual excuse (unlawful combatants) for depriving persons of basic rights. Hilary Clinton clowns around suggesting that it is important that they have the right person in custody not mentioning at all the right of habeas corpus or to challenge detention in any other way except as being the wrong person.
Some of the cases listed show what a travesty of even the most elementary justice the whole setup is.


Wrangling over rights of Guantanamo detainees
TheStar.com - World - Wrangling over rights of Guantanamo detainees

December 06, 2007
Tim Harper
WASHINGTON BUREAU

WASHINGTON – Almost six years after the first terror suspects were shipped to Guantanamo Bay, the top U.S. court yesterday revisited arguments on what has become the defining human rights issue of the George W. Bush era.

The government argued before Supreme Court justices that more than 300 Guantanamo Bay detainees have enjoyed greater rights than ever envisioned in such circumstances by the country's founding fathers.

But the lawyer representing detainees pleaded for their right to challenge detentions that have dragged on year after year with no independent arbiter allowed to rule on the legality of their imprisonment.

The court was hearing a Guantanamo Bay case for the third time and the justices were deeply engaged and perhaps deeply divided, peppering lawyers from both sides with pointed questions.

The collision of liberties and security and the basic question at issue – whether detainees should be allowed to challenge their detention before U.S. courts – spilled out onto the sidewalks in front of the Supreme Court building and into the U.S. presidential campaign.

Demonstrators dressed in orange prison garb stood outside on a snowy Washington morning and hundreds waited in line for hours to grab a seat in the courtroom.

Yesterday's hearing could ultimately have an impact on the case of Omar Khadr, the only Canadian held at Guantanamo Bay, but his case is more complex because he is one of only three detainees formally charged and facing a trial under military rules.

His lawyers filed a court brief urging the justices not to issue a ruling dealing with those who have not been charged that would "limit or jeopardize" the same rights of those facing formal charges.

The Pentagon has said it has plans to charge no more than 80 of the estimated 305 detainees who remain at the Cuban military base.

U.S. Solicitor General Paul Clement told the nine-member court that Guantanamo detainees have enjoyed the fruits of a "remarkable liberalization" of original U.S. law that enshrined the legal right known as habeas corpus.

But Seth Waxman, representing some 37 detainees, argued the U.S. Congress wrongly stripped the prisoners of their rights when it passed legislation in late 2006 creating military tribunals.

He said those detainees have been confined at Guantanamo for almost six years, "yet not one has ever had meaningful notice of the factual grounds of detention or a fair opportunity to dispute those grounds before a neutral decision-maker."

Among those defended by Waxman are six Algerians who were legal residents in Bosnia when they were captured by the Bosnian military a month after the Sept. 11, 2001 terror attacks on suspicion of plotting an attack on the U.S. embassy in Sarajevo.

The Bosnian high court ordered them released for lack of evidence, but the military immediately recaptured them and handed them over to the U.S. military, which shipped them to Guantanamo where they have languished for six years.

"These men (were) taken by the United States thousands of miles away ... plucked from their wives and children in Sarajevo," Waxman said.

Waxman also cited the case of Murat Kurnaz, a German man who was detained at Guantanamo for four years even though U.S. investigators found he had no links to Al Qaeda.

The case, reported yesterday by The Washington Post, spotlighted the flaws in the military tribunals because he was told very little of the evidence against him when he was deemed an enemy combatant.

The top court has ruled against Bush twice, first in June 2004, when it famously clipped the president's executive power and declared detainees' fates could be decided only by the judicial branch, not the presidency.

Then in 2006 the court ruled the military commissions established by the Bush administration were illegal because the president had acted without congressional approval.

In the days before the 2006 mid-term elections, with the Republican congressional majority on its deathbed, U.S. legislators responded by passing the Military Commissions Act, which established the military panels but also stripped the prisoners of their basic habeas corpus rights, or their rights to have their case heard by a U.S. judge.

The top court at first refused to hear another appeal challenging the will of Congress, but surprisingly reversed itself last summer.

"Congress has spoken," Clement said yesterday.

Waxman, a solicitor general in the Bill Clinton government, said prisoners have been kept in isolation for six years while the courts, Congress and the military have wrangled over how best to deal with them. "The time for experimentation is over," he said.

On the campaign trail, Hillary Clinton, who is seeking the Democratic presidential nomination, said the U.S. must not indefinitely detain anyone without a safeguard that ensures the proper person is being detained.

"This is one of the bedrock principles enshrined in our constitution," Clinton said, "it is the way our founders believed we could be secure against those who would abuse government power."

A leading Republican presidential candidate, former Massachusetts governor Mitt Romney, saw the hearing as an opportunity to restate his commitment to keep Guantanamo Bay open if he is elected.

"Some people view Guantanamo as a symbol of American aggression," he said in a statement. "I view it as a symbol of American resolve. So long as it remains a vital tool to keep America safe, I will fight to keep Guantanamo Bay open."