SCOTUS Compare-Contrast

Note: This post was actually started two years ago as a follow-up to my Brief History of the Supreme Court, and I have finally finished it.
This is my first non-music post in a while.
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DISCLAIMER: My following explanation of the Post-Nixon Court is mostly based on fact and observation, and I have tried to be as objective as possible; nevertheless, there may be some opinion-based thoughts expressed here. This is also not meant to be exhaustive.
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Despite the few liberal precedents of the Nixon era, SCOTUS became markedly more conservative during this period, and with the election of Reagan as president, the Court hit a point from which it could never easily turn back: the rise of the Ultra-Conservative faction of the Court, as well as the retirements/deaths of the remaining "Strong" liberals, who were replaced by moderate liberals, and the rise of moderate Justice Stevens as the foremost liberal on the Court.
* This is illustrated by the failed nomination of Robert Bork, followed by the successful appointment of Scalia, Thomas, Alito, and Roberts.
* Of course, both Reagan and Bush Sr. had relative disappointments as had Nixon, with the appointment of, respectively, two moderate-right conservatives (O'Connor and Kennedy [both Reagan appointees]) and one moderate-left liberal (Souter [Bush appointee].

What I mean by all of this is simple:
If one were to compare the Supreme Court of today to, for example, the Warren Court (I chose that one mainly because I am most familiar with it, and because it serves as a strong contrast), we would see some striking differences, even in how we define the factions.
* The Warren Court, despite its relative liberality, had a relatively conservative wing as has every Court. The Justices most strongly aligned with the Conservative wing of the Warren Court were Potter Stewart, John Marshall Harlan II, and Felix Frankfurter.

The Warren Court's makeup from 1958-1962

* But, when one compares these conservatives with the current SCOTUS' conservatives (Roberts, Alito, Thomas, Scalia), one finds that they are on entirely different wavelengths. Despite the Warren-Era conservatives' attempts to prevent some of the Warren Court's excesses, the conservative justices of the time still joined in many of the liberal decisions.
* For example, Justice Harlan, often considered a strong conservative, nevertheless was the main proponent of the Right of Privacy established in Griswald and which led to the decision in Roe v. Wade. The idea of the current conservatives taking any part in such a decision is hard to even imagine. Perhaps the only analogue on the Court is Justice Kennedy, who helped to preserve Roe v. Wade and even authored the decision in Lawrence v. Texas (2003), which established a freedom of sexual activity within the Right of Privacy. Nevertheless, Kennedy (the most moderate conservative) is arguably more conservative than the strongest Warren conservatives, as his vote in such cases as Citizen's United and the recent "Obamacare" case illustrate.
* Justice Hugo Black (who may be the greatest justice to ever sit on the Court in my estimation) and Justice William Douglas were both First Amendment Absolutists and, especially in the case of Black, were Strict Constructionists. Yet, they were the last of their breed of Strict Constructionists who reached quite liberal decisions while also reaching rather conservative ones at times. Now, the Court can (generally) be lumped into the Constructionists/Originalists (not necessarily the same thing) on one end and the Living Constitutionists on the other, with each side voting pretty much along party lines. Although the Warren Court justices were somewhat predictable, their votes were not nearly as partisan as those of today's justices.

There you have it... My humble thoughts...
The conclusion: Although most Supreme Court compositions throughout the US's history could be divided into Conservative and Liberal factions, those labels meant vastly different things in the past. In the last few decades, the Court has swung the right, with the conservative wing almost off the tipping point and even the liberal wing being far less liberal than in the past.

According to a US News & Weekly Report 2008 ranking of conservatism in the post-1937 Court, four of the five most conservative justices of the last 75 years are currently sitting on the Court, and most of the top ten have sat on the Court within the last few decades, while none of the ten least conservative justices are currently sitting.

Finally, an article published a few days ago includes a chart (below) showing percentages of decisions featuring one-vote majorities (in many cases 5-4 decisions), and the Rehnquist and Roberts Courts both have over 20% of their decisions decided by such majorities, an increase of 5% from the Burger and Vinson Courts and about 10% from the Warren and Stone Courts.

On Ensuring Transparency and Accountability in Film Ratings

WHAT FOLLOWS IS A PAPER I WROTE FOR A FREE SPEECH CLASS AT UCLA. THE SUBJECT MATTER IS GOVERNMENT VS. PRIVATE FILM RATING/CENSORSHIP SYSTEMS. THE PAPER COULD ONLY BE 2 PAGES SINGLE SPACE, SO ITS PRETTY CRAPPY, AS I FELL IT NEEDED TO BE MUCH LONGER TO FULLY EXPLORE THE THEMES. TO BE HONEST, I DON'T AGREE WITH A GOVERNMENT SYSTEM AT ALL, BUT MY ADVOCACY OF IT IS MORE SO BASED ON A CONTEMPT FOR THE MPAA THAN FOR LOVE OF CENSORSHIP...

“Censorship” is a word that evokes strong reactions among most Americans. Add the word “government,” and the reaction will likely be even more pronounced. Perhaps at the heart of this is a general sense that speech should never be suppressed or limited, that access to the “marketplace of ideas” should never be closed off. Nevertheless, many industries have established various rating and guideline systems that serve as de facto (and at times de jure) censoring boards. Perhaps the most notable is the Motion Picture Association of America (MPAA), which founded its ratings board in 1968 and has since become the most recognized film rating agency in America. Despite its usefulness as a guide for parents, it has raised considerable controversy since its founding, and with the release of the documentary This Film Is Not Yet Rated in 2006, questions of ethics and transparency have become even more pronounced. After seeing the film, Roger Ebert, a vocal critic of the MPAA, wrote that it leaves the viewer “thinking a government censorship board… isn't such a bad idea.” As much as that may leave a sour taste in many people’s mouths, there is much reason to believe a government system would be more effective.

According to the MPAA’s website, the goal of its ratings system is to “provid[e] clear, concise[,]… timely, [and] relevant information to parents.” Furthermore, the organization claims to be “a proud champion of… freedom of expression and the enduring power of movies to enrich and enhance people's lives.” Both are certainly admirable goals and values, but arguably the reality is far from the P.R.-friendly pronouncements of its website would lead one to believe.

The first stated mission of the MPAA, to provide guidance to parents about film content and suitability for minors, is certainly an important one. Many parents have, since the advent of the film industry, objected to its supposed corruptive ability, and the rise in graphic depictions of sex, violence, and drug use in recent years certainly makes the need for guidance even more pressing. Nevertheless, the reality is that the rating system goes beyond mere guidance to actively restraining both parents and children. For example, an R rating on a film requires that a child be accompanied by a guardian, which may not only be bothersome to both parent and child, but may actually supplant a parent’s permission. A guardian who wishes not to accompany their child to an R-rated film, but who has given full permission for them to view it, will essentially be ignored. Even worse, a parent who, having made an educated investigation, finds an NC-17 film unobjectionable will be forbidden from bringing anyone under 17 in to the theatre with them, despite their informed decision and approval. In that manner, the ratings system can effectively ignore parent’s wishes at the same time as it intends to protect their rights to make informed decisions.

Nevertheless, it could be argued that this is a minor problem, and that the benefits of protecting youth from objectionable material outweigh the incidental effects on free speech. That may be a valid point, but only if there was a way to insure that the system was not abused and that the ratings were applied in a more or less objective manner, with some form of oversight and transparency. Unfortunately, neither oversight nor transparency exists in the MPAA review board, the membership and deliberations of which remain a closely-guarded secret. In addition, independent studies and investigations, including some illustrated in This Film Has Not Yet Been Rated, have demonstrated inequities and inconsistencies in film ratings between individual titles, as well as between those produced by the six major film corporations and those produced by independent filmmakers. Furthermore, strong disparities have been found between treatments of sexuality and violence, with films showcasing the former being far more likely to receive an NC-17 rating than the latter. For example, the Passion of the Christ, a film Roger Ebert considered the most violent film he had ever seen received only an R rating, while the film Where the Truth Lies received an NC-17 for graphic depictions of lesbian sexual intimacy. An additional point raised by these particular examples is the rating disparities between films depicting or promoting Christianity and traditional values and those depicting homosexuality or nontraditional lifestyles.

The specter of government censorship understandably scares many people, but if one were to entertain the idea it may become clear that it is a better and more practical alternative to the current state of affairs. The MPAA was founded as a means of preventing and/or limiting government entanglement with filmmakers, thereby theoretically protecting the free speech rights and artistic license of filmmakers. Such is definitely the statement on its website. Nevertheless, its de facto censorship, absent any defined standards or oversight, has effectively limited speech more than a government censorship board would be likely to do. Unfortunately, because the MPAA’s decisions have no force of law (despite its de facto censoring powers), no First Amendment or other legal claims can be made against it. Its recommendations to filmmakers to edit or delete scenes therefore have considerably more sway, despite its supposedly voluntary nature. Was it a government-regulated system, filmmakers would have structures in place whereby they could appeal decisions to transparent boards or courts. Furthermore, the specific guidelines would have to be more effectively laid out, thereby limiting confusion on the part of studios and also discretion on the part of government boards. In addition, all regulations would be subject to constitutional muster, thereby making the threshold at which expression may be stifled significantly higher than in a system without oversight. In addition, the government system would (theoretically) not be controlled by the major studios as the MPAA is. Of course, the reality could be different given the significant lobbying powers of large corporations on Capitol Hill and in state legislatures, but the transparency and accountability of legislators to their constituency would at least serve as a buffer against egregious abuses. As such, independent films may have a greater chance of reaching larger audiences without significant censorship of their scenes, given the relatively relaxed and open government policy toward even pornographic films.

Perhaps the most effective manner of administering a government-instituted ratings system would be to create a two-tiered ratings agency, with the primary board as the first determining body and an appeals panel in the second tier, as in the current MPAA system. Both tiers could require executive nomination with advice and consent of the respective legislative body, thereby making the panels more transparent. Appeals of the second tier decisions could be made to the judicial branch, perhaps to a district court. This would ensure that decisions are separated from the legislative process, and that safeguards would be in place for all parties concerned. In addition, greater care could be taken to ensure that local theatres are not overzealous in their enforcement of ratings, ensuring that what is essentially a guidance system does not become a structure whereby exposure of minority viewpoints would be limited.

And what of the fate of films such as This Film Is Not Yet Rated, films critical of the prevailing structure, even of the film ratings system itself? They would be handled in the same manner as all other films, without prejudice or consideration of the subject matter at hand (when falling within protected speech, of course). If anything, the treatment would be less restrictive, as any objectionable material within this film is excerpted from other films and is intimately related to the purpose of the film, which is essentially educational.

These measures would hopefully help to remedy the current state of affairs as regards film ratings and censorship. Of course, no system is fool-proof, but a system with checks and balances, with oversight and transparency, is always preferable over a closed, secretive system with huge discretion in carrying out its goals. This is especially true when a system touches something so fundamental to our system as free speech and expression.

A Brief History of the US Supreme Court

This is by no means meant to be an exhaustive or detailed history of the Supreme Court of the US (hereafter referred to either as The Court or SCOTUS), but rather a general overview. As such, there will likely be many blanket statements about a period of SCOTUS history/jurisprudence that may not hold true for all cases or justices during that time. Nevertheless, I feel that I am correctly and accurately representing the subject matter at hand.

The Court in its earliest days lacked any real prestige. The current sense that the judiciary is a coequal branch with equal powers to check and balance the other two branches was not exactly settled at the time.
* In fact, the Court was completely overlooked when it came to a physical building, so while the Congress and Presidency had their own buildings, the Court had to meet in a basement of the Capital building, and never had a structure of its own until the 1930s.
* At least one justice in the first Court resigned to accept a much more prestigious job (an ambassadorship, I believe).
* To make matters worse, the Court's decision in Chisholm v. Georgia, decided just two years after the Court began meeting and generally considered the most important of the first ten years, was overturned by the passage of the Eleventh Amendment in 1795.

It wasn't until John Marshall became the Chief Justice in 1801 that the Court gained its current place in the American system. Marshall served until 1835, and remains to this day the longest-serving Chief Justice and the third longest serving Justice.
* The Court's decision in Marbury v. Madison (1803) declared the power of judicial review, and over the next 30 years Marshall and his Court reached decision after decision that strengthened the federal government and limited the powers of states to act against federal law.
* Examples of this include the famous cases of McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), which recognized that Congress had implied powers and protected Congress' power to regulate interstate commerce, respectively.
* In the last years of Marshall's service, the Court's power was undermined when their decisions in the Cherokee Nation and Worcester v. Georgia cases protecting the sovereignty of Native Americans were ignored by President Jackson, leading to the Trail of Tears.

Marshall's successor, Roger B. Taney, presided over a Court that reached many important decisions as well, but his tenure is perhaps best remembered by the Dred Scott decision.
* Dred Scott v. Sandford (1857) remains among the most infamous decisions of SCOTUS. The central component of the ruling was that blacks were inferior and could never be US citizens and that the Missouri Compromise, which had outlawed slavery in the territories, was unconstitutional. It is interesting to note that this was only the second time the Court had declared an act of Congress unconstitutional (the first time being in Marbury 54 years earlier). The Dred Scott decision tarnished the Court's reputation for many decades and in many ways contributed to the outbreak of Civil War.

The Courts of the next few decades had an equally weak record with Civil Rights issues, as the Court ruled in the Slaughterhouse Cases that the newly-passed Fourteenth Amendment was essentially unenforceable against state action, thereby basically making it useless as law. Later, in the Court's now infamous 1896 decision in Plessy v. Feruson, SCOTUS held that racial segregation was constitutional, so long as the separate accommodations were essentially equal.

With the dawning of the 20th century, the question remained as to what would be the direction of the Court. Was it to continue its thus far dismal record on rights and constitutional enforcement or was it to take an active role in enforcing individual rights? In the early years of the century, the answer to that would have been that yes, SCOTUS was to take an activist stance, but arguably not in a positive manner. During what has become known as the "Lochner Era" (named for the 1905 case Lochner v New York) beginning in 1897 and continuing until 1937, the conservative Court struck down (usually by 5-4 margins) socially progressive legislation one by one. Laws they struck down included minimum wage laws, maximum work hour laws, protections for child and women labourers, etc. It seemed that the Court would forever be the enemy of liberty, despite its claims that these laws were being stricken down on account of an unenumerated Freedom of Contract.

This all changed with what has become known as the "Switch in time to save nine." It has been suggested that this was a result of Roosevelt's threats to "pack the Court" with liberals, but for whatever reason, the majority became 5-4 in support of upholding socially progressive laws, and with the appointment by Roosevelt of a number of justices, a new era in the Court's history began.
* Known as the Constitutional Revolution, the Court began what is known as the process of Selective Incorporation, whereby the Bill of Rights protections began to be applied to state action through the Due Process Clause of the 14th Amendment. Essentially, what that means is that the Court began to take Civil liberties and Rights issues seriously.
* Perhaps the most important decision of the early Constitutional Revolution was West Virginia Board of Ed v. Barnette (1943), in which the Court declared that one could not be required to say the Pledge of Allegiance, ruling that the Freedoms of Religion, Speech, and Conscience are central to the American system.

The Constitutional Revolution reached its maturity, and arguably its high point, with Eisenhower's appointment of Earl Warren, the Republican Governor of CA, as Chief Justice.
* The Warren Court is often considered the greatest period in the Court's history by liberals, while it is deeply hated by many conservatives.
* The Warren Court's first majour decision was in Brown v. Board of Education (1954), in which SCOTUS ruled that "Separate But Equal is never equal," thereby striking down segregation as a legally enforceable institution. Unfortunately, the de-segregation order met with considerable resistance in the South, an example of which was the "Little Rock Nine" incident in 1957.
* Earl Warren considered the Reapportionment cases (Baker v. Carr [1962] and Reynolds v. Sims [1964]) to be his Court's most important decisions. In these cases, the Court declared that states could not have legislatures apportioned on an unequal basis, and that the Constitution required "One Man, One Vote."
* The Warren Court also reached decisions striking down school-sponsored prayer and bible study (Engel v. Vitale [1962] and Abington v. Schemmp [1963]), declaring a Right of Privacy (Griswald v. Connecticut [1965]), strengthening the rights of the accused (Miranda v. Arizona [1966] and Gideon v. Wainwright [1963]), etc.

As I mentioned earlier, not everyone agreed with the Warren Court's decisions, some decisions of which admittedly resting on unstable legal grounds.
* When Warren retired, Nixon was able to appoint his successor, as well as a number of other justices in an attempt to shift the Court further to the right. He only somewhat succeeded, as many of his own nominees joined in some relatively liberal decisions, including Roe v. Wade, declaring a Right to Abortion (written, in fact, by a Nixon nominee [Justice Blackmun] and decided by a 7-2 margin), as well as the case declaring that Nixon did not have executive privilege to do anything he so desired.

Despite the few liberal precedents of the Nixon era, SCOTUS became markedly more conservative, and with the election of Reagan as president and through to the Obama administration, the Court has become consistently more conservative.
* The Court has always had liberal and conservative factions, but the current Court's conservative and liberal factions are more conservative than in the past. I plan to devote an entire blog post to this issue in the future, so I don't plan to go too deep into this now, but what I mean is this:
* The Conservative faction is made up of 4 Ultra-Conservatives and one moderate (but still quite conservative) swing-vote justice. The Liberal faction is made up of liberal justices, but the liberal justices of today are far more moderate than in, for example, the Warren Era. The retirements/deaths of the remaining "Strong" liberals in the late 1980s and early 1990s, who were replaced by moderate liberals, and the rise of moderate Justice Stevens as the foremost liberal on the Court has helped to buttress this shift in the Court.

As I said, I will soon devote a post to the shifts in the Court during the modern era as well as a compare-contrast between the concepts of liberal and conservative in the Warren Era v. the Roberts Era, so I will end here for now. Thanx for reading!

UPDATE: See Here for the SCOTUS Compare-Contrast Post!