Suggested Answers To Short Quiz

[johnkarls]

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Question 1

Which President appointed Justice Stephen Breyer to the US Supreme Court? What was Breyer’s background?

Answer 1

Bill Clinton.

One of six* current US Supreme Court Justices to attend Harvard Law School, Breyer was (A) clerk to US SCt Justice Arthur Goldberg 1964, (B) member of Harvard Prof. Archibald Cox’s Special Watergate Prosecution team, (C) Harvard Law Prof. 1967-1994, and (D) U.S. First Circuit Court of Appeals Judge 1980-1994 including Chief Judge 1990-1994.

* The US SCt comprises 3 Yale Law School graduates and 5 Harvard Law School graduates. The ninth Justice, Ruth Bader Ginsburg, attended Harvard Law School for two years whereupon her husband Martin Ginsburg, who was a year ahead of her, graduated and moved to NYC to start a world-renowned career as an international corporate tax expert with Weil, Gotshal & Manges. Accordingly (???!!!), his dutiful wife transferred to Columbia Law School for her last year.

Question 2

Who appointed the other eight US Supreme Court Justices?

Answer 2

Ronald Reagan - Antonin Scalia.
George H.W. Bush – Clarence Thomas.
Bill Clinton – Ruth Bader Ginsburg + Stephen Breyer.
George W. Bush – John Roberts + Samuel Alito.
Barack Obama – Sonia Sotomayor + Elena Kagan.

The list used to be more eye-popping because during the last 50-60 years, many of the Court’s most liberal members had been appointed by Republican Presidents. Short of impeachment, there is no control over what a Justice does after s/he joins the Court.

Question 3

What is the best definition of judicial restraint, per the NY Times book review of Making Our Democracy Work?

Answer 3

The NY Times Reviewer, Jeff Shesol (the author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court” and a speechwriter for President Bill Clinton) –

(A) quotes one of the SCt’s all-time all stars, Justice Oliver Wendell Holmes (1902-1932 = 30 years on the Court giving him the longevity championship to accompany his all-star status) as writing: “If my fellow citizens want to go to hell, I will help them. It’s my job.”

(B) and then comments in the review: “This, for much of the last century, has stood as the purest (or at least the most pungent) distillation of 'judicial restraint' – the idea that judges should, for better or worse, leave the business of governing to the people’s duly elected representatives. As practiced by the jaundiced Holmes, restraint was often a shrug of the shoulders: lawmakers, in his view, were predisposed to foolishness, and the Constitution entitled them, in most cases, to be fools.”

Question 4

Who coined the term “judicial activism” and what is meant by it?

Answer 4

Arthur M. Schlesinger, Jr., Pulitzer-Prize winning author who served as a Harvard History Prof. 1946-1961 when he resigned to become a speech writer for his long time friend, President Kennedy.

Arthur Schlesinger Jr. coined the term "judicial activism" in a January 1947 Fortune Magazine article which profiled all nine Supreme Court justices on the Court at that time. It characterized Justices Black, Douglas, Murphy, and Rutledge as the "judicial activists," Justices Burton, Frankfurter, and Jackson as the "champions of self restraint," and Chief Justice Vinson and Justice Reed as centrists.

The term usually means that a Justice feels free to decide what a statutory or constitutional provision means for whatever reason(s) the Justice deems appropriate. (Please see Q&A 5)

Question 5

How does the term “judicial activism” relate to “original intent” in terms of interpreting the US Constitution?

Answer 5

Please see Q&A 4 for a definition of “judicial activism.” Opposing this is the doctrine of “original intent” which means trying to ascertain what the framers of the US Constitution actually meant rather than making up your own mind what you would like it to mean today.

Question 6

Is the US Constitution a set of ideas adopted (except for amendments) in 1787 by a group of primitive farmers that does not (the set of ideas) fit the modern-day world very well?

Answer 6

Yes.

Question 7

What would be the best example of one of its key provisions adopted 223 years ago that has been routinely ignored since 1941 even though it has been almost constantly the most important issue facing the nation since then?

Answer 7

The requirement for a Declaration of War.

President Harry Truman began the tradition of ignoring this Constitutional requirement by claiming that the Korean War was a “police action” and therefore no Declaration of War was required. Since the entry of the U.S. into World War II following the bombing of Pearl Harbor on 12/7/1941, the Constitutional Requirement to declare war has never been honored.

Question 8

What would be the best example of one of its key provisions (albeit adopted 4 years later in the Bill of Rights = Amendments 1 - 10) that arguably prevents America from being a safe place absent another Constitutional Amendment?

Answer 8

The right to keep and bear arms in the Second Amendment.

Question 9

What was the ERA? What did it teach us about the virtual impossibility of improving the primitive document we call our Constitution?

Answer 9

The ERA proposed by Congress in 1972 was the Equal Rights Amendment for female citizens who, incidentally, did not even acquire the right to vote until the ratification of the Nineteenth Amendment in 1920!!!

Unlike Amendments 13-15 which followed the Civil War and freed African-American slaves, the ERA giving female citizens equal rights has never been ratified by the state legislatures!!!

The lesson is obvious.

Following the ratification of the Bill of Rights (Amendments 1-10) which was universally agreed to be necessary to achieve adoption of the Constitution itself, there have been only 17 ratified amendments and 6 that have not been ratified. The last 6 ratified amendments have spanned the last 77 years and have only dealt with mundane issues. The last non-mundane amendment was the Repeal of Prohibition 77 years ago.

Question 10

During our discussions over the past 5 years, why did we always conclude that a parliamentary system of government would be far superior to the one with which we are saddled by our Constitution?

Answer 10

Because the parliamentary system of government has no independent executive branch. Instead, the executive functions of government are run by Ministers who remain Members of Parliament but are selected by the Governing Party upon their electoral victory.

Accordingly, any group of citizens who feel strongly about a particular issue (or issues) can form their own party. As soon as an election occurs in which none of the major parties has achieved a majority in Parliament, each tries to put together a coalition of parties that will comprise a majority.

[In Britain, the Monarch (currently a female) decides which major party will be permitted to try to form a majority coalition, but in most other countries with a Parliamentary form of government, the efforts of the major parties to form a majority coalition are a “free for all” with minor parties entertaining simultaneously proposals from the major parties.]

Does anyone doubt, for example, that if the U.S. had had a Parliament and citizens had formed a minor party advocating universal health care, there would long since have been an election in which the major parties would have agreed to “Medicare For All” in order to recruit our minority party to their governing coalition???

Question 11

Why do you think the overwhelmingly prevailing form of government in Europe is parliamentary?

Answer 11

Please see Answer No. 10. It’s called progress!!! Sometimes its even called obeying the will of the people!!!

Question 12

Why do you think that after our first nation-building attempt at saddling a country (Afghanistan) with a form of government (the hybrid Parliament-plus-President model tailored for Chas de Gaulle following the disaster of the Fourth French Republic), we scrapped that model in designing Iraq’s constitution with the pure parliamentary system featured in most civilized countries?

Answer 12

The Obama Administration was on record long before the Wiki-Leaks leaks as wishing they had anyone but President Karzai as a partner in Afghanistan.

In stark contrast, in the Iraqi Parliament a governing coalition was recently put together and a new (though former) Prime Minister elected. [Some pedants may point out that Iraq has a President, but that is only a ceremonial post, similar to that of the Queen of England, as a sop for the Kurds.]

Question 13

Are there 2-3 decent features of our Constitution that we can mention in order to achieve a façade of fairness for this quiz?

Answer 13

Yes.

No democracy can function without Freedom of the Press, Freedom of Speech, and the Rights to Assemble and to Petition.

Indeed, William Shirer, author of Rise and Fall of the Third Reich, continued to function as an American War Correspondent in Berlin following the commencement of hostilities between Germany and Britain in 1939 all the way until Pearl Harbor at the end of 1941 – since Hitler didn’t care what war correspondents from neutral nations reported back to their home countries because Joseph Gőbbels, Reich Minister of Propaganda 1933-1945, controlled completely the German news media.

[For example, when Germany declared war on Czechclosvakia, the German public actually believed that Czechclosvakia was mal-treating the German population of its Sudentenland (the part of Czechclosvakia that was often described by commentators as “a dagger aimed at the heart of Germany” and that was taken from Germany along with its German population at the end of World War I by the victors and given to Czechslovakia in order to weaken Germany). NB: at the end of World War II, all Germans in the Sudentenland were forced to leave in a typically-European exercise of Pre-Bosnian ethnic cleansing.]

Question 14

When did filibustering nominations to the US Supreme Court come into vogue and why?

Answer 14

On October 20, 1973 occurred the “Saturday Night Massacre” when President Nixon, frustrated that Special Prosecutor Archibald Cox would win custody of the Watergate Tapes, fired Attorney General Elliot Richardson for refusing to fire Cox and then fired Deputy AG William Ruckelshaus for refusing, before the third-ranking AG member, Solicitor General Robert Bork agreed to fire Cox which Bork did on that same Saturday evening = three firings.

[This led to wide-spread joking among Harvard Law alums that three Harvard Law Review Presidents (Cox, Richardson and Ruckelshaus) did the right thing and it took a Yale Law School Prof to screw things up!!! Incidentally, Barack Obama was also a Harvard Law Review President.]

Needless to say, when President Reagan nominated Bork to the Supreme Court on 7/1/1987, the Democrats were out for revenge!!!

Until then, filibustering had been used throughout history almost solely as a way for the Democratic Party to block Civil Rights legislation from the Civil War until the early 1970’s when Richard Nixon was able to induce The Solid South to leave the Democratic Party and join the Republicans as a result of Civil Rights legislation passed under the leadership of his predecessor, Lyndon Johnson.

Amusing Digression = One might wonder why Nixon didn’t just flout the Supreme Court and destroy the tapes, as contemporary public opinion polls indicated the public would have supported overwhelmingly if Nixon simply announced he had destroyed them for national-security reasons. When John Karls served as Chair of the Amn Bar Assoc’s International Tax Committee 1994-1996 comprising the country’s top 300 international tax attorneys with 22 working subcommittees, he knew the San Francisco tax attorneys who had provided Nixon with a legal opinion that the tapes were not “Presidential papers”!!! Previous long-standing practice had been that US Presidents were permitted to steal their official papers upon leaving office (no corporate CEO would dare walk off with his CEO papers and be prosecuted for larceny!!!) and then make a charitable donation of those papers to his Presidential Library and take a tax deduction for their value!!! But Congress had recently changed the law to disallow the tax deduction for donating Presidential papers. So on the advice of counsel that tapes were not papers, President Nixon installed the taping system upon assuming office with the intent of donating the tapes upon leaving office to his Presidential library and taking a tax deduction. His reluctance to destroy his tax deductions produced the Saturday Night Massacre which produced the whirlwind that meant destroying his tax deductions would no longer salvage the situation.

Question 15

Even though filibustering did not come into vogue initially due to the political views of nominees that they might employ in their decisions on the court, why has filibustering been a constant threat during the last 23 years? In this respect, what is the typical age and religion of nominees? Why is their typical age and religion significant?

Answer 15

With the successful filibustering of the Bork nomination in 1987 and the controversial decision by the Supreme Court’s decision in Roe v. Wade (1973) that the legalization of abortion was required by the US Constitution, nearly every Supreme Court nomination since 1987 has been in jeopardy to the requirement of Article Two of the Constitution that nominations be confirmed by the US Senate.

Republicans have catered in particular to the animosity of the Religious Right to Roe v. Wade which has led to their nomination of Roman Catholics who are young and, therefore, have the potential to remain on the Court for an exceptionally-long tenure.

Bill Clinton and Barack Obama have also followed suit by nominating, with the exception of Ruth Bader Ginsburg who was 60 at the time of her appointment in 1993, candidates in their early 50’s – with Clarence Thomas only 43 at the time of his appointment by the first President Bush.

The Supreme Court comprised white Protestants until 1916 when Louis Brandeis joined the Court to occupy what became known as “the Jewish seat.”

Thurgood Marshall, attorney in the 1954 landmark school desegregation case of Brown v. Board of Education of Topeka representing the plaintiff NAACP as its General Counsel, was the first African-American. He was nominated in 1967 to occupy what became known as the African-American seat (which is currently occupied by Clarence Thomas).

It might shock the naïve to learn that there are no longer any Protestants on the Court!!!

Other than three Jewish members (Breyer, Ginsburg and Kagan), all of the other six are Roman Catholic -- five of whom were carefully selected by Republican Presidents for their presumed hostility to Roe v. Wade (the sixth was Sotomayor whose Catholicism and presumed hostility to Roe v. Wade President Obama had to swallow in order to appoint the first Hispanic to the Court).

Indeed, the “presumed” hostility to Roe v. Wade is often close to a “slam dunk”!!! According to an article in the NY Times on 7/23/2005 during Chief Justice Roberts' confirmation hearings, his wife Jane Sullivan Roberts had served on the Board and provide pro bono legal services to Feminists For Life which, during her association with the organization, supported efforts to ban partial-birth abortion and supported efforts to enact legislation making illegal the transportation of minors across state lines to evade parental-notification abortion laws.

However the NY Times article reports that inquiries into the abortion views of Jane Sullivan Roberts fizzled when Roman Catholic Senator Ted Kennedy (former chair of the Senate Judiciary Committee and its ranking minority member at that time) declared her views “out of bounds”!!!

Question 16

Is the US Supreme Court democratic in the sense that it reflects the popular will?

Answer 16

No.

Question 17

Is the US Supreme Court a highly-political body that does not dare to apply the principles it preaches in contexts that would be too unpopular? What would be a good example of this hypocrisy?

Answer 17

Yes.

The Court has ruled against “affirmative action” in various contexts.

However, by far the largest de facto “affirmative action” program in the country’s history has been college athletic scholarships, the overwhelming majority of which are awarded to African-American athletes. The only restriction ever placed on the award of athletic scholarships was Title IX which required gender equality and which was added in 1972 as an amendment to the Civil Rights Act of 1964. This, of course, is ironic because 1972 was the same year that the Equal Rights Amendment (discussed in Q&A-9) passed Congress and was submitted to the state legislatures for ratification.

But the overwhelming majority of athletic scholarships being awarded to African-American athletes when African Americans comprise only approx. 15% of the population is something the Supreme Court doesn’t dare to declare to be an unconstitutional “affirmative action” program because of the popularity of college sports!!!

Question 18

The NY Times Book Review states: “As Breyer himself notes, ‘the public has developed a habit’ of accepting the court’s rulings, even egregious ones like Bush v. Gore.” Is the characterization of Bush v. Gore as “egregious” Breyer’s or the reviewer’s? Wasn’t Breyer in the 9-0 majority in Bush v. Gore I? How did Breyer vote in Bush v. Gore II and Bush v. Gore III? What were the conclusions of the studies of the Florida ballots conducted much later by a “Big Four” CPA Firm for a consortium of newspapers headed by the NY Times and by another “Big Four” CPA Firm for a consortium of newspapers headed by the Miami Herald?

Answer 18

The commentary regarding “egregious” is the reviewer’s.

Breyer, of course, was in the 9-0 majority in Bush v. Gore I which ruled that the Florida Supreme Court had to state its reasoning in approving the Gore vote-recount procedures because they involved a U.S. Presidential election and, therefore, were governed by the “Equal Protection of the Law” Clause of the Fourteenth Amendment.

In Bush v. Gore II which followed the Florida Supreme Court’s dutifully explaining its reasoning, Breyer was among the 7-2 majority that ruled that “cherry picking” only counties where re-counts were controlled by Democrats and employing different tests (hanging chad, dimpled chad, etc.) violated the Equal Protection of the Law clause of the Fourteenth Amendment. The 7-2 majority ruled that to satisfy “Equal Protection of the Law” 100% of the ballots would have to be recounted and THE SAME TEST RE CHADS had to be used for all ballots, while leaving to Florida the selection of which chad test to use.

Bush v. Gore III followed Gore’s returning to the Supreme Court to argue that since he had wasted so much time with unconstitutional recounts, there was no longer sufficient time to conduct a recount that satisfied the US Constitution and, therefore, the Supreme Court should nullify the Federal Election Law which provided, in effect, that if the Florida Secretary of State was not in position to certify the election results by the FEL’s deadline, then the Florida electoral votes would be cast by the Florida Congressional delegation which had a Republican majority. Breyer was in the 5-4 minority that thought the Court should overrule Congress and postpone the meeting/vote of the Electoral College in order to give Gore more time.

Long after the dust settled, 100% of the ballots were examined by one of the Big Four CPA firms hired by a consortium of newspapers headed by the NY Times, and 100% of the ballots were also examined by another of the Big Four CPA firms hired by a consortium of newspapers headed by the Miami Herald. Both Big Four CPA firms reported that there was no chad test which, if applied to 100% of the ballots, would have reversed Bush’s victory.

Question 19

Have US Supreme Court decisions always been followed? What has been the most frequent reason for ignoring them? Have there been other reasons? Is the court impotent to compel adherence to its decisions if the Commander-In-Chief refuses to support them?

Answer 19

No.

National security, as determined by The Commander In Chief (i.e., the President).

Yes.

Yes. Indeed, the landmark 1954 school desegregation case of Brown v. Board of Education of Topeka made unconstitutional as “inherently unequal” the de jure dual school system of 17 southern states that had theretofore been justified by the Court constitutionally as “separate but equal.” Thereupon ensued widespread speculation FOR THREE YEARS whether President Eisenhower would enforce the Court’s decision!!! Matters came to a head on 9/4/1957 when Arkansas Governor Orval Faubus deployed the Arkansas National Guard to prevent 9 African American students from entering Little Rock’s Central High School. After failing to persuade Gov. Faubus to back down, President Eisenhower on 9/24/1957 ordered the 101st Airborne Division to Little Rock and also nationalized the entire 10,000-member Arkansas national guard, taking it out of the hands of Gov. Faubus. The 101st Airborne deployed around the high school on 9/25/1957 and the 9 African Americans successfully entered the school and registered.

Question 20

How does the US Supreme Court select the cases that it will hear?

Answer 20

There are three answers to this question.

(1) Mechanical.

The justices pool their clerks to summarize appeal Petitions (Justice Stevens, who retired earlier this year, was the last Justice to even have his own clerks summarize appeal Petitions).

If a reputable CPA firm were providing an Annual Report on the Supreme Court (CPA firms are required to provide with their Annual Reports a “Management Letter” that highlights weaknesses in the entity’s procedures, especially if fraud could be perpetrated without the collusion of at least two people), the CPA firm would comment that the Court is tremendously naïve to think that a person who has just graduated from law school could not be bribed and/or intimidated by a hit man to craft a summary of a particular appeal Petition that would guarantee its rejection by the Justices.

Since each appeal Petition is required to start with a statement of the questions(s) presented by the appeal – is it too much to ask that the Supreme Court Justices read the question(s) presented by each case rather than the summary prepared by their pooled clerks???

And if the Supreme Court Justices are too lazy to read the question(s) presented rather than the summaries, is it too much to ask them to have at least two of their pooled clerks prepare independently a summary of each case so that any hit man/men would have to threaten at least two clerks rather than only one??? After all, a single recent law school graduate might succumb to a threat and/or bribe if s/he thought only the hit man could implicate her/him, but might have second thoughts about whether another young attorney might later have pangs of conscience.

(2) Procedural.

The Court almost never accepts an appeal from a party that is not represented by a small group of attorneys who regularly appear before the Supreme Court. For example, Chief Justice Roberts was a member of this group – as are David Boies and Theodore Olson, opposing counsel in Bush v. Gore but co-counsel for the plaintiffs in the gay-rights litigation currently before the Ninth Circuit.

This, of course, means an appeal to the Supreme Court, in order to even stand a chance of being accepted, requires a seven-figure retainer up front.

(3) Substantive.

Please see Q&A 21.

Question 21

If there were a Holocaust taking place today in the United States, would the US Supreme Court agree to hear the case?

Answer 21

Of course not!!!

The Supreme Court would take the view that it is already well-settled law that nobody is supposed to kill other human beings for no good reason so the matter does not justify the attention of the Supreme Court. The number of human lives being destroyed would have no bearing on the decision to reject the appeal.

Question 22

Since the US Supreme Court declined this past year to hear Karls v. Goldman Sachs, et. al., which involved the destruction of the lives of 10 million American inner-city children (vs. only 6 million lives destroyed in the World War II Holocaust) resulting from the Unconstitutional Denial of Due Process of Law and the Unconstitutional Denial of Equal Protection of the Law by both the US District Court (Northern District, California) and the Ninth Circuit in a manner that produced a substantive result diametrically opposed to well-settled law, what safeguards (if any) are there against a new Holocaust occurring in the United States and, indeed, the Holocaust that is currently destroying the lives of 10 million American inner-city children?

Answer 22

The US District Judge, after briefing was completed, permitted Goldman Sachs, et. al., to submit voluminous materials in violation of the court’s rules despite vociferous objections and then issued his decision three days before the scheduled hearing which would have been the Plaintiff’s only opportunity to comment on the illegal materials – cancelling the hearing at the same time.

A Ninth Circuit three-judge panel affirmed the decision in a one-sentence order which was, like the District Court decision, un-published and un-citable – or, in other words, “separate and inherently unequal”!!! Thereupon Plaintiff filed a Petition for Rehearing En Banc which provides for a hearing before a much larger panel if a majority of the Court’s 47 judges votes in favour of an en banc rehearing – a vote must be taken if even only one of the Court’s 47 judges requests a vote. The original three-judge panel illegally seized control of the Petition and illegally re-characterized it as a mere Motion and then denied it without permitting any of the other 44 Judges to even see it while, at the same time, ruling that their decision was final and that no more motions or petitions would be permitted!!! This time in a four-sentence order which, again, was un-published and un-citable or, in other words, “separate and inherently unequal”!!!

Obviously, Goldman Sachs, et. al., have acquired four new Patron Saints!!! (If, indeed, Goldman Sachs did not create the Saints through illegal means.)

Needless to say, the Supreme Court was not interested in the destruction of the lives of 10 million American inner-city children which, of course, the appeal Petition pointed out prominently was what was at stake with permitting unconstitutional “separate and inherently unequal” legal opinions in violation of the Equal Protection clause of the Fourteenth Amendment.


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AND FOR FUN --

Question A

Has a former US President ever served on the US Supreme Court?

Answer A

William Howard Taft was elected President in 1908 when his mentor, Teddy Roosevelt, decided not to run for re-election.

In 1912, Teddy Roosevelt decided to run for President as an independent candidate, splitting the Republican vote between himself and Taft who was the Republican nominee. Accordingly, Woodrow Wilson won with only 41.8% of the popular vote.

After Woodrow Wilson’s 8 years in the White House, President Warren Harding after a mere 3.5 months in office, nominated Taft to become Chief Justice of the Supreme Court in which capacity he served for 9 years.

Question B

Who is the most famous candidate for US Vice President to serve on the US Supreme Court? What was his background?

Answer B

Earl Warren, who served as Chief Justice 1953-1969 and wrote the 9-0 majority opinion in the 1954 landmark school desegregation case of Brown v. Board of Education of Topeka.

Earl Warren served as Governor of California 1943-1953 and was Tom Dewey’s Vice Presidential running mate in 1944 and 1948.

It would probably have been easier for us to remember Warren’s background if the famous 11/3/1948 Chicago Tribune headline had said “Dewey-Warren Win” rather than “Dewey Defeats Truman”!!!

Question C

Who is the most recent US President to seriously consider, and be considered for, nomination to the US Supreme Court?

Answer C

Bill Clinton has never made any secret about his interest in being appointed to the US Supreme Court.

The possibility was widely discussed in the media during the 2000 Presidential campaign of Al Gore, Clinton’s Vice President for 8 years.

And the possibility was discussed in the media again during the 2008 Democratic primaries when it was speculated whether Hillary Clinton, as President, might nominate her husband.