So Easy A Justice Can Do It

SCOTUS barely has its feet in the water of cyber technology.  Seriously.  It was the last of the U.S. Courts to implement electronic recordkeeping.  So you think these Justices would have any idea about electronic transparency?  NOT.  They still live in the stone age of communication.

You can read in Kennedy's opinion that he did not have a freakin' clue about networking or internet technology.  In the opinion the Justices refer to "magic words". (line 953)

K, dun roflmao.

'Magic words' are what we call metatags and backlinks and are used for SEO.  They sound like cavemen. (and cavewomen).

Then, they did not even have any stares decisis that would have given them any foundation to address the culture of technology because SCOTUS has an ancient system of hearing public issues.  Here is how it works:

You make it to the big show, the United States of America Supreme Court.  You file...in person, of course because SCOTUS still does not have Electronic Case Filing on PACER.

Then you have to make it through the rank and file of law clerks who will only pick public issues they feel are appropriate for the Justices to conference on.  All the research is done through the clerks because.

When the clerks are researching a case to make decisions on whether to allow it to go before the Justices, where do you think they go to see if it is a public issue?  THE INTERNET.

This is verifiable due to wonders of Google Analytics.  I busted SCOTUS a few times looking at my stuff.  I can actually track how long and what subject matter they want.  Now, someone please tell me the Justices actually are knowledgeable of this stuff.  If they were, they would not have come down with such a...I must put this in proper legalese...such an unsophisticated sagacious decision which gracefully demonstrates its undeveloped acumen for technology.

So, when the Justices come up with their fancy opinions, you know where it comes from.  The internet.

A corporation will shoot money to a fly-by-nite non-profit.  All you need is a post office box, a domain name, a quick website and pay someone who knows nothing to use their name on it.  File for your 501(c) 3 and you are in business and that non-profit.

Now you have money coming in and if you are really good, you snag a few state and federal grants.

Next, is getting the money to a candidate.  Create a Political Action Committee.

All a corporation needs to do is set up a few of these non-profits and then make contributions to the PACs.  A PAC has to support an issue and that issue has to do with 3 or more political candidates.  It's done.

There are much more sophisticated schemes but I think you have a basic understanding of this rubric.

Corporate campaign ads haven't followed Supreme Court's prediction

COMPANIES AND UNIONS HAVE BEEN ABLE TO AVOID THE TRANSPARENCY CALLED FOR IN THE COURT'S LANDMARK RULING. SPENDING ON NEXT WEEK'S MIDTERM ELECTION HAS BEEN EXORBITANT

Chart: Money flowing into midterm campaigns

Reporting from Washington — The Supreme Court sent a wave of corporate and union money flooding into campaign ads this year, but it did so with the promise that the public would know — almost instantly — who was paying for them.

"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions," Justice Anthony M. Kennedy wrote in January. "This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

But Kennedy and the high court majority were wrong. Because of loopholes in tax laws and a weak enforcement policy at the Federal Election Commission, corporations and wealthy donors have been able to spend huge sums on campaign ads, confident the public will not know who they are, election law experts say.

Corporate donors have been able to hide their contributions despite the opposition of shareholders and customers — the very groups cited by Kennedy.

Here are the questions presented to the Justices:

QUESTIONS PRESENTED: 

1. Whether all as-applied challenges to the disclosure requirements (reporting and 

disclaimers) imposed on "electioneering communications" by the Bipartisan 

Campaign Reform Act of 2002 ("BCRA") were resolved by McConnell’s statement 

that it was upholding the disclosure requirements against facial challenge “for the 

entire range of electioneering communications' set forth in the statute." Mem. Op. I, 

App. 15a (quoting McConnell v. FEC, 540 U.S. 93, 196 (200)). 

    2. Whether BCRA's disclosure requirements impose an unconstitutional burden 

when applied to electioneering communications protected from prohibition by the 

appeal-to-vote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007) 

("WRTL II”), because such communications are protected "political speech," not 

regulable “campaign speech,” id. at 2659, in that they are not "unambiguously 

related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 

U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when 

so applied. 

    3. Whether WRTL II’s appeal-to-vote test requires a clear plea for action to vote 

for or against a candidate, so that a communication lacking such a clear plea for 

action is not subject to the electioneering communication prohibition. 2 U.S.C. § 

441b. 

    4. Whether a broadcast feature-length documentary movie that is sold on DVD, 

shown in theaters, and accompanied by a compendium book is to be treated as the 

broadcast "ads" at issue in McConnell, 540 U.S. at 126, or whether the movie is not 

subject to regulation as an electioneering communication.

Here are the some keywords and links to make sure this message gets back to the Justices, of course, via the clerks:


Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, Elena Kagan. Clarence Thomas,Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, Ruth Bader Ginsburg

Kagan May Challenge SCOTUS

 The Rehnquist Court demonstrated a severe lack of awareness in the parens patriae doctrine in DeShaney v. Winnebago County , because, that defendant did in fact violate the Due Process clause to protect the child, as child protection had been placed under Trade and Commerce Law back in 1976, federally funded by CAPTA in 1974, solidifying the basis of the initial argument that it was the inherent right of the state to protect its heir in perpetuity. Therefore, the state violated federal anti-commerce law and the due process contained within of 15 U.S.C. 15 (c), obfuscated within child welfare policies.

It seems there may be innovative and inspirational thought in SCOTUS for the 21st century.

Kagan Backed Broad Interpretation of 14th Amendment

By JESS BRAVIN

WASHINGTON—As a Supreme Court law clerk in 1987, Elena Kagan read the 14th Amendment as permitting lawsuits against reckless state officials who ignore their duties—reflecting the liberal view that the constitutional guarantee of liberty should be read broadly.

That position was rejected by the court's conservative majority in a 1989 case, DeShaney v. Winnebago County, which narrowly defined what "liberty" the Constitution protects. The court's 6-3 ruling immunized state welfare officials who over the course of a year failed to act when repeatedly alerted to an alcoholic father's violent abuse of his four-year-old son. The continued beatings ultimately put the boy in a coma, destroyed half his brain and left him institutionalized for life, court records say.

Many liberals consider the ruling profoundly flawed, while conservatives praised it for denying recognition to what they call new rights.

The materials appear in the papers of Justice Thurgood Marshall, for whom Ms. Kagan clerked in 1987-88. Law clerks often say they seek to reflect their boss's approach to the law, rather than promote their own. Ms. Kagan's current position on the legal question isn't clear.

President Barack Obama has nominated Ms. Kagan, the solicitor general, to succeed Justice John Paul Stevens on the Supreme Court after he retires this summer. Unlike many other nominees, she has not served as a judge, meaning that there is little paper trail on her positions.

In a September 1987 memo to Justice Marshall, Ms. Kagan observed that the issue was important, and that lower courts had split on whether state officials, who can be sued for wrongful acts, also could be sued for wrongfully failing to act.

Federal appeals courts for the Third Circuit, in Philadelphia, and the Fourth Circuit, in Richmond, Va., had in similar cases sided with plaintiffs. But Judge Richard Posner of the Seventh Circuit, in Chicago, wrote that even though alerted to the abuse, state officials had no duty to protect Joshua DeShaney from his "bestial father."

"The state does not have a duty enforceable by the federal courts to maintain a police force or a fire department, or to protect children from their parents," Judge Posner wrote.

Ms. Kagan believed the Seventh Circuit got it wrong, but advised Justice Marshall to vote against hearing the appeal unless he was certain to have four other justices—making up a majority—on his side. Without such assurance, "I only worry that a majority of this court will agree with Judge Posner that 'the Constitution is a charter of negative rather than positive liberties' and will thereby preclude the approach" of the Third and Fourth circuits.

Ms. Kagan took a similar position on a related issue, advising Justice Marshall to let stand a ruling from the 11th Circuit, in Atlanta, that a local welfare department could be sued for placing a foster child in an abusive home, where beatings left the seven-year-old girl in "an apparently permanent coma."

Judge Joseph Hatchett likened the state's function in placing a child in a foster home to incarcerating prisoners, who cannot be abused during their confinement. He wrote that the 14th Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," the Supreme Court's standard for applying the Eighth Amendment ban on cruel and unusual punishments.

"With contemporary society's outrage at the exposure of defenseless children to gross mistreatment and abuse, it is time that the law give to these defenseless children at least the same protection afforded adults who are imprisoned as a result of their own misdeeds," Judge Hatchett wrote.
In a November 1987 memo to Justice Marshall, Ms. Kagan characterized that position as "considerably more tenuous" than liability based on an explicit statute. "Some members of this [Supreme] Court will doubtless object" to the holding that the 14th Amendment "imposes such affirmative obligations on state officials." Nonetheless, she concluded, "I think the holding is correct and that this court should let it stand."

The justices ultimately left Judge Hatchett's ruling intact. In the DeShaney case, however, the court agreed with Judge Posner.

The 14th Amendment was intended "to protect the people from the state, not to ensure that the state protected them from each other," Chief Justice William Rehnquist wrote for the majority. It provided "no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."

The court extended that reasoning in 2005, in a case where police dismissed a terrified mother's pleas to enforce a restraining order against her estranged husband, who had disappeared with their three young daughters, whom he killed later that night. The court voted 7-2 that local authorities were immune from liability.

The DeShaney case is famous in part for the dissent by Justice Harry Blackmun. "Poor Joshua!" he wrote. "Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by [welfare officials], who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except" recording the incidents in their files."

"Our 14th Amendment may be read more broadly or narrowly depending upon how one chooses to read them," he continued. With such a choice, "I would adopt a 'sympathetic' reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging."

But Justice Blackmun wrote only for himself. Justice Marshall instead joined the dissent by Justice William Brennan, which eschewed such emotional terms in favor of a more technical analysis.
Justice Brennan wrote that several factual issues should be determined by a trial court, such as whether welfare officials effectively prevented other means of rescuing Joshua, such as suggesting to relatives and neighbors that the state was on the case and they need not take steps to protect the boy.
The court majority's reasoning has been based on its narrowing interpretation of the 14th Amendment clause providing that no state may "deprive any person of life, liberty, or property, without due process of law."...more...