CLAY JENKINSON: The Jefferson Watch — The Supreme Court: Political From The Get-Go

We like to think of the Supreme Court as a nonpartisan and completely independent branch of government that makes sure laws passed by Congress and the states conform to the provisions of the United States Constitution.

The Supreme Court aspires to that Olympian detachment and judicial neutrality but seldom achieves it. Like it or not, there is a political substratum in court appointments, and it can produce great political tension at unsettled moments in American life. Like now.

Presidents nominate Supreme Court justices and the Senate has to confirm. There has been occasional trouble since the very beginning.

The first justice to be denied a seat on the court was a man named John Rutledge. It was 1795, just seven years into the new constitutional order. Rutledge had written an op ed piece critical of the Jay Treaty — a 1794 treaty with Britain that tried to resolve certain lingering issues from the War of Independence. That was enough for a Federalist Senate to scotch his candidacy.

Jefferson came into office in 1801 in what he called the Second American Revolution. But poised to prevent that revolution was Chief Justice John Marshall, Jefferson’s distant cousin. He was put into his life-tenured position in the last months of John Adams’ failed one-term administration. Adams, who distrusted Jefferson’s democratic radicalism, essentially engaged in last-minute court packing — Marshall and dozens of other midnight appointments — to make sure Jefferson did not take things too far to the left.

Marshall went on to serve for 34 years. He was perhaps the greatest of all Supreme Court justices. He was indeed a thorn in Jefferson’s side. Marshall wanted America to be a great centralized nation state, not a confederation of sovereign states. Marshall envisioned a nation that prized the sanctity of contract above any temporary notion of social justice. He despised Jefferson’s vision of a lightly governed, inward-looking, agriculturally based loose association of proud commonwealths like Virginia and Pennsylvania. We now live in Marshall’s America, not Jefferson’s.

Jefferson struck back at the judiciary in 1804 by convincing his partisans in the House of Representatives to impeach Supreme Court Justice Samuel Chase, a signer of the Declaration of Independence who had become an obnoxious and outspoken anti-democrat from the bench. The question was this: Can you impeach a justice for what you regard as his nasty politics. The U.S. Senate chose not to convict Chase.

Jefferson seems to have sensed that he was playing a dangerous game, one that could erode constitutional stability. In the aftermath, he admitted that such impeachments were a bungling enterprise and he desisted from meddling with the independence of the judiciary thereafter. Jefferson appointed three justices to the Supreme Court. Every one of them wound up disappointing him.

The last attempt to pack the court was in 1937, when Franklin Roosevelt, just re-elected in a landslide, attempt to increase the number of justices from nine to 15 so that his emergency New Deal legislation would not be struck down by judicial conservatives any longer. Congress balked. Even Democrats in Congress, including senators and representatives devoted to the New Deal, refused to give Roosevelt such unprecedented power. He was frustrated, but this is how our system is supposed to work.

What we should want is a justice with a first-rate mind, great analytical powers, an unusually high capacity for legal discernment and nuance, a deep grounding in the history of law, the history of natural rights and the history of constitutions, particularly “our” Constitution. What we want is someone who knows a great deal about original intent but is not a slave to original intent (that was then, this is now, and by the way “that” constitution was written to protect slavery, so how “original” do we really wish to be?) We want someone who prizes a strict protection of human rights over government efficiency or economic prosperity. What you most want on a court is a few crabby civil libertarians who understand that the whole genius of America is to leave as many people alone as possible as often and emphatically as possible.

So why are we already locked into an angry national cage match on Roe V. Wade, the abortion decision issued by the Supreme Court in 1973?

Both parties are behaving in a deplorable manner: The Republicans want the nominee to pledge to overturn Roe V. Wade. The Democrats insist that he or she hint that she will leave current abortion law in place.

Not only is this the wrong basis on which to give someone life tenure, but it trivializes the third branch of our national government into a public policy club consisting of nine unelected and largely unaccountable persons. The great questions of a great nation should not be decided by nine unelected individuals.

They are men and women like other men and women, capable of nobility and capable of pettiness, vengefulness, ignorance, prejudice, bigotry, pride and self-aggrandizement. They have good days and bad. They see some issues with great clarity and others with the kind of muddled gut reactions that characterize all of the rest of us.

The future of this country should be in the hands of an infinitely wider body than the Supreme Court. Our current approach is not much different from letting the starting lineup of the Chicago Cubs determine the future of the United States.

I believe the nomination process should be taken out of the hands of American presidents, who misunderstand and misuse their appointment power for narrow and often temporary purposes, and put it instead into the hands of a severely nonpartisan think tank of constitutional experts who look for raw judicial talent irrespective of the person’s political views. Once the foundation designated someone of outstanding merit, the Senate would confirm or deny with a straight up and down vote.

America is awash in men and women who would be outstanding Supreme Court justices. But the very last questions we should want to ask them is where they stand on Roe V. Wade, or the Affordable Care Act, or affirmative action.

JIM FUGLIE: View From The Prairie — Republicans Raising Taxes In North Dakota? Yep, They Did That

Wait a minute.

Wait A Minute!


What the heck is going on here?

The North Dakota Legislature raised your taxes, and everybody’s cheering!

The cheerleaders?

Republicans: Gov. Doug Burgum, Attorney General Wayne Stenehjem, Tax Commissioner Ryan Rauschenberger.

Democrats: Sen.. Heidi Heitkamp, Tax Commissioner candidate Kylie Overson.

The chant: “A victory for North Dakota’s retailers!”

Screw that.

OK, I’m going off on a rant here.

I’m talking about last week’s U.S. Supreme Court ruling that states (including North Dakota) can collect sales taxes from Internet retailers. So now, states that have a law in place can immediately begin collecting sales tax on the books we purchase from used booksellers, or shoes we buy from Zappo’s, or a CD from Amazon, or printer ink cartridges we buy from Canon, or refrigerator filters we buy from Sears.

North Dakota has such a law. It’s a pretty new one, thanks to the passage of Senate Bill 2298 in the 2017 Legislature, which said that if the Supreme Court should ever rule in favor of allowing states to collect sales taxes on Internet purchases, North Dakota will do it.

In the North Dakota Senate, all 47 senators — 38 Republicans and nine Democrats — voted for it. In the House, 56 Republicans and 12 Democrats voted for it, while 22 Republicans and one Democrat voted against it. Republican Gov. Doug Burgum signed it into law. That’s the law that just raised your taxes.

A major tax increase passed with not so much as a whimper. Of course, the tax increase had a “trigger” (sound familiar?): it only took effect if the Supreme Court justices said it could. They did. Last week.

The decision was hailed nationally as a “victory for brick-and-mortar businesses that have been complaining for years that they are at a disadvantage by having to charge sales taxes while their online competitors don’t.”

And the states complained they were missing out on billions of dollars in revenue. One of the newspaper stories I read about this past week quoted a fellow from something called the Institute on Taxation and Economic Policy as saying, “State and local governments have really been dealing with a nightmare scenario for several years now.”

Oh cry me a river. No one is going to change their shopping habits because they have to pay sales tax — an extra 5 percent or so.

People shop online because they can get exactly what they want, which is not always the case locally, usually at a substantially lower price than if they bought it locally, and have it delivered to their door, in a matter of days.

Paying an extra 5 percent sales tax, when they’re saving 20 to 30 percent — or more — is not going to deter them.

What all these politicians who are raving about this as being a huge boon to their state’s treasuries fail to mention is that it is not big online retailers who pay these taxes.


We pay them.

“This is a long overdue victory for our local retailers,” says Gov. Burgum.

“I’m absolutely thrilled,” says Heidi Heitkamp, a former North Dakota tax commissioner and attorney general.

“I’m glad the Supreme Court was able to recognize the unfair advantage online retailers have,” said Rauschenberger.

Well, I call bullshit!

This is nothing more than an increase in the most unfair tax we pay, and it hits lower and middle-income families the hardest. Low-income families spend most of their paychecks, and yes, if they can buy products cheaper online than in local stores they do that. (Note: A lot of us old folks who don’t like driving in traffic or parking at the mall do it, too.)

But they’re not doing it because they don’t get charged taxes. You bought ink for your home printer lately? Eighty dollars at Staples or Best Buy. Twenty dollars online. That’s why people shop online. They’re not disloyal to their hometown merchants. They’re simply trying to make ends meet.

On top of all that, the North Dakota Legislature has been cutting taxes on big corporations and has slashed billions in revenue from oil companies in the past four years. That new sales tax law passed in 2017 means that a family scraping by on $40,000 a year — and there are lots of them in North Dakota — gets a tax increase. Meanwhile, that same North Dakota Legislature gave Harold Hamm’s oil company a multimillion dollar tax cut.

I’ve been arguing for years with my Democratic-NPL friends in the Legislature, to no avail, that with all the oil tax revenue we could collect, they should be introducing bills to CUT sales taxes.

“We need the revenue for schools and Medicaid,” they counter. Well, yeah, but how about getting it from big corporations and oil companies and not from poor families in the checkout line?

C’mon, Democrats. Introduce a bill to cut sales taxes. There are only 22 of you in the whole damn Legislature — and 119 Republicans. Make them vote against cutting taxes. Maybe, just maybe, they’ll be too embarrassed — or even principled — to do that.

We’ve got $7 billion or $8 billion in the bank. We’re not poor. Use oil taxes to pay for schools instead of raising taxes on moms and dads working two jobs to just put shoes on their kids’ feet.

I talked to one of the legislators who voted against SB 2298. He agreed that the sales tax hits the working class families the hardest. And he also pointed out that we have a lot of our own online retailers right here in North Dakota, and this could be a nightmare for them.

Our law says they have to collect sales taxes if they conduct more than 200 transactions a year, or have sales of more than $100,000. Well, that puts our online retailers between a rock and a hard place. First, they’re going to have to spend some money ramping up to collect the taxes and send them to the state. Then, let’s say they figure there’s no way they’re going to exceed $100,000 in sales, so they don’t charge the tax, and then right at the end of the year, they have a Christmas rush in sales and end up with 210 customers, or someone comes along and makes a big purchase, pushing them over $100,000. Now what?

Or let’s say they expect to have a pretty good year, so they charge the tax, and then end up not reaching 200 sales, or $100,000. Now what?

This whole deal just sucks. The Supreme Court decision doesn’t mandate states collect the tax. It just allows them to collect the tax. I think North Dakota shouldn’t do it. We’re already one of the richest states in the country. If we need more money, the only tax we should be raising is the tax on oil. Not a consumer tax.

Rauschenberger says he’ll collect up to $30 million a year under the new law. But not from online companies — from us. We’ll be paying it. Although those retailers are going to have to do a lot more technology and paperwork, which might mean they have to raise the prices on stuff we buy. A double whammy on consumers.

By the way, that $30 million would be 5 percent of online sales. That means North Dakotans must be spending $600 million a year online. I’m having a hard time wrapping my head around that. I’m wondering if the tax commissioner didn’t just make something up, pull a number out of his ass. There’s been a lot of that going around lately.

Anyway, if my choice is to pay $20 for ink for my printer online, or $80 here in town, that 5 percent tax doesn’t make a bit of difference to me. I’ll still order it online. So tell me how this ruling helps local retailers. Does that make any sense to anyone?

Well, anyone except greedy government officials, who just can’t see a downside to this?

I read somewhere that the cuts the Republicans made to the oil tax in 2015 are costing the state something like $15 million a month. So we cut taxes for those who can most afford them and increase taxes on those who can least afford them.

A victory for North Dakota retailers? Bullshit. It’s a $30 million loss for North Dakota consumers. And it really pisses me off.

TOM DAVIES: The Verdict — But Did Justices Scalia And Burger Agree?

The National Rifle Association spokespeople like to use Justice Antonin Scalia as a supporter of the Second Amendment to the extent they claim you can’t place limits on gun ownership and use.

The NRA is devoid of integrity. It espouses its “love for the right to own guns, any guns.” The moment POTUS 45 declared to the National Governors Association, “”Don’t worry about the NRA. They’re on our side” … I knew that the BS (and I don’t mean “Boy Scouts”) train was back on the tracks.

Last week, I quoted the late Justice Warren Burger, who called the NRA leadership “pernicious liars.” Of course, Justice Burger would be considered a liberal judge with whom the NRA would disagree.

It should therefore come as a surprise that the late conservative Justice Antonin Scalia, often quoted as supporting the position of the NRA, did no such thing!

In 2008, Justice Scalia led a five-justice majority to recognize, for the first time in American history, that “law-abiding, responsible citizens” have a right to own a handgun in defense of their homes. Note: They said “handgun.” The case was District of Columbia v. Heller (2008). The NRA uses it to this day to support its gun-slinging positions. What the NRA has done is to use “selective reasoning.” I, therefore, will do the same thing — only I’m going to use “selective incontrovertible fact.”

A passage that has come back to haunt the NRA because people who can read are talking about it right now is Scalia’s subsequent warning that people shouldn’t read too much into the fundamental right he helped announce. Scalia emphasized that “long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” were still fair game.

Justice Scalia opined that the Second Amendment is restricted to weapons “in common use at the time” and further stated it left the government with many tools for combating handgun violence, including regulation.

Since the Heller decision, lower courts have upheld numerous restrictions on the sale and ownership of guns. On many occasions, including twice in the last year, the Supreme Court has refused to hear lower court appeals of cases regulating ownership and sale of weapons in which regulation was approved.

There is a profound disconnect between the actual meaning of the Second Amendment, as it is understood by courts, and the political uses of the Second Amendment, as it is invoked in federal and state legislatures and as a basis for attacking politicians who think in good faith about how best to save lives.

If you are one of the folks who like to debate the weapons issue, just remember — the reason the federal government ducks gun regulation to this day is that the U.S. Congress is owned by the NRA. States, however, are free to regulate and protect their citizens. That seems the only way to proceed until the upcoming midterm elections.

The wonder of the youth of today is that they are not tolerating the cowardly comments and positions of politicians anymore. They are taking action. Many millions more will be able to vote for the first time during the midterms in November.

If you want to watch how successful these students are, watch the flip-flops (at least in talking points) that congressional members are now making.

I totally support the upcoming student protest demonstration planned for March 14 in Moorhead and hope that Fargo and other communities will join the Moorhead students in supporting the cause.

For those who say students should not demonstrate — that they should stay in school and shut up — I say what I’ve said to the NRA: You go to hell, and let our young people demonstrate the courage and guts the adults don’t have.

If you believe that government regulation of weapons will cause it to confiscate all of your guns, then wear your Nazi emblems on your shirt sleeves where they belong — because that’s how you must view this wonderful country of ours.

We live in trying times, but the good times will return. It’s Mueller time. Amen.

TOM DAVIES: The Verdict — Supreme Court Is Overdue For Its Own Code Of Judicial Conduct

It was 1957 ― the year I graduated from Fargo Shanley High School and turned my senior mantle over to my sister, Kate, who was a year behind me. Sister Jody was preparing for her wedding in the fall; brother Tim was in the Air Force and also preparing for his own fall wedding; and I had no idea where my little sister Jean was because I saw her so seldom. (She’s years and years behind me in age. I actually asked my folks at breakfast one day who the hell she was.)

It was also the year that Fargo suffered a terrible tornado that caused much death and destruction, including taking the the roof off the Shanley gym. But the most exciting event of all was yet to come.

My dad had just two years under his belt since his appointment to the bench by President Eisenhower when the presiding judge of the 8th Circuit Court of Appeals asked him if he’d help clear a backlog of cases in Little Rock, Ark., elsewhere in the 8th Circuit.

Ronald N. Davies was never one to back down from a challenge. He readied his 5-foot-1-inch frame for what he thought would be a new but routine gig. I’ll only say this once: Dad’s height was obvious, but he cast a giant shadow. When he entered any room, be it courtroom or living room or his favorite haunts at the Fargo Elks Club and the Gardner Hotel cafeteria, he was always noticed.

Enough of the bragging about my father. Let me now brag about the judge ― Ronald Norwood Davies. As most know, he accepted the court’s assignment and went to Arkansas. In a total of just 33 days, he rendered an historical decision and attended his daughter Jody’s wedding. (He had to miss Tim’s wedding because of the case in Arkansas.)

While Dad didn’t talk about the case at home, it became very obvious it was serious … not only because of the news but because it had to have been something very, very significant to keep him away from my brother Tim’s wedding. I know it broke Dad’s heart to miss the occasion but also know that Tim completely understood the reasoning.

Dad was sent to Arkansas to interpret the meaning of one sentence ― “with all deliberate speed” ― and how to apply it. In Brown v. Board of Education, the state of Arkansas had been ordered to integrate (desegregate) Central High School in Little Rock. Many over the passing years have thought Judge Davies had been the actual originator of the order to integrate, but this wasn’t so.

I wish I’d asked my father whether having children the same age as the students whose fate he determined had an impact on his decision. With no proof, I will still always believe it did, just knowing his heart and character as I did.

His options were not limited. He could have delayed the implementation of the integration by years; he could have said within one year; he could have left some discretion to the school board. His decision was to integrate right now, without any further delay. I will believe to my grave that he saw his own children in that setting and thought, “There would be no delay, period.”

For his courage in “simply discharging his duties” as he put it, Dad received much praise from the legal community and some of the lay people. He also received bushels of hate mail. He ignored it … but that brings me to this year.

The year 2015 now ends with Justice Antonin Scalia of the U.S. Supreme Court making a racially charged argument in an affirmative action case, Fisher v. Texas.

“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower track school where they do well.”

While Judge Scalia is considered an intelligent jurist and a nice man with a great sense of humor, he also holds the current record for controversial statements ― as opposed to the court’s greatest disappointment and only black member, Justice Clarence Thomas, who sits in court without saying a word. Turn the clock back, and today’s group would have listened to Anita Hill. …

The point to be made here is that there is no Code of Ethics or Judicial Conduct for U.S. Supreme Court justices. Every other federal and state court has one, as well as most local courts.

Off-the-cuff remarks like Justice Scalia’s would not be made if he were bound by the same rules as other federal courts. He has brought matters to such a state that Sen. Chris Murphy, D-Conn., has been impelled to introduce The Supreme Court Ethics Act. Legal scholars have previously urged that the chief justice implement such a code ― but without success. To be sure, other justices have also brought the issue of conduct into question, but this one leads the pack.

My father viewed discrimination and segregation much differently than this justice. Judge Ronald N. Davies was right. Justice Antonin Scalia is not.

Introducing a code of judicial conduct for U.S. Supreme Court justices is essential. Amen.