There's "Trouble with Amicus Briefs" at the Supreme Court -- notably an increased reliance on "facts" that aren't

-- appendix to Professor Larsen's paper (click to enlarge)

The amicus brief has served a valuable role over time in educating Supreme Court Justices and supplementing the arguments the parties can make. But times have changed. There is a new emphasis in Supreme Court decision making on generalized factual claims and a turn toward empirical factual support for legal arguments. There is also a brave new world of factual data that can be marshalled easily and quickly by any interested party who can call itself an expert. The Court seems hungry for factual information; it consumes it at a greater rate than the parties and the record can provide. But by turning to motivated interest groups to fill the need – and indeed relying on the amicus briefs themselves as evidence on factual claims -- the Court risks tainting its decisions with unreliable evidence. It is time to rethink the expertise providing role of the Supreme Court amicus, and to refashion this old tool for the new purpose to which it is currently being used.

-- the "Conclusion" to Prof. Allison Orr Larsen's
paper "The Trouble with Amicus Facts"

by Ken

Going by such numbers as we have here at DWT, I notice that when I write about the doings of the Supreme Court, and especially what we know about its workings, reader interest usually drops off a cliff. (Okay, maybe "rolls down a perceptible hill" would be more like it.) Which makes me wonder whether it's perhaps for reasons somewhat similar that Adam Liptak's intriguing NYT report "The Dubious Sources of Some Supreme Court 'Facts'" came to be dumped into the Labor Day Weekend trough.

Or perhaps the timing is simply keyed to the soon-to-happen publication of an article by College of William and Mary law Prof. Alli Orr Larsen, "The Trouble with Amicus Facts," in the Virginia Law Review. Adam L cites Professor Larsen's finding in brief: "The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise." And those "11th-hour, untested, advocacy-motivated claims" are finding their way into lots of real, live Supreme Court opinions.

Adam L begins his piece:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations to facts they learned from amicus briefs.

"A perilous trend" is how Adam L characterizes Professor Larsen's reaction to her findings, and this seems absolutely correct as to both her reaction and her findings. Here is the abstract for her "research paper" (which runs to 57 pages in the downloadable-free PDF file, which I freely confess I haven't read, at least not yet):

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

THERE ARE TWO ISSUES HERE, STARTING
WITH ONE OF BASIC LEGAL PROCEDURE

First, there's the legal question of whether the justices should be marshaling facts of their own at all. As Adam L notes, appellate courts normally "are not supposed to be in the business of determining facts," which is "the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process."

Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

And one justice has tried to steer his colleagues back to this basic principle. Can you guess who?

Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”

But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”

The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”

And if you look at the chart at the top of this post, provided by Professor Larsen as an appendix to her paper, you'll see that Justice Nino is as good as his word. Of course Justice Nino doesn't need to go searching for facts. He hardly needs facts at all. Oh, he pays lip service to the facts as established at trial, but in reality he's just cherry-pickin' the facts, and the law, and the Constitution, and the original intent of the Framers, to line up with the unerring legal wisdom that comes from the miasma of his intensely ideological stinkybutt.

Still, at least Justice Nino sticks to his guns in his aversion to considering new facts, unlike a colleague who claims to have the same opinion but turns out to be lying his putrid guts out.

Can you guess who this steadfast stinkybutter is? We'll come back to this in a moment.


BUT FIRST WE NEED TO CONSIDER THE OTHER,
MUCH BIGGER PROBLEM: ACTUAL FACTUALITY

With this new practice of "copying" from the Internet, says Professor Larsen, an awful lot of bilge is being imported. Here's Adam L again:

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

And as Adam L points out, the new "facts," not part of the judicial record, to which Justice Nino objected so vociferously in that 2001 dissent: (1) were at least government-funded studies, and (2) "were submitted by a party to the case and thus were likely to be closely examined by the other side."

Most of the information from the amicus briefs recently cited by the justices was not subjected to even that level of adversary scrutiny. Only 28 percent of the cited materials drew a response from one of the parties in the case.

And in the Hobby Lobby case, Adam L writes,

Justice Samuel A. Alito Jr. pushed back against the recent trend, refusing to consider “an intensely empirical argument” in an amicus brief. “We do not generally entertain arguments that were not raised below and are not advanced in this court by any party,” he wrote.

OOPS! WE HAVE TO REMEMBER THAT SAMMY
"THE HAMMER" IS A PATHOLOGICAL LIAR

Or maybe he's simply so blinkered by his rigidly far-right ideological view of the world that he sincerely doesn't recognize where reality ends and his delusions begin. Whatever the process, Professor Larsen begs to differ with The Hammer. Adam L quotes from a recent blogpost of hers, "Allisn Orr Larsen on Intensely Empricial Amicus Briefs and Amicus Opportunism at the Supreme Court":

"This descriptive statement by Justice Alito about Supreme Court practice is simply incorrect."

"Consider these examples," writes Adam L.

In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.

“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are “an increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

While I realize that what I'm about to say can be dismissed as my own ideological bias, I strongly believe it isn't, being based on extended exposure to the legal thinking and writing of the justices involved. You'll note from Professor Larsen's table that Justice Breyer, who notched only one fewer amicus-brief citations than the champ, "Slow Anthony" Kennedy" -- and also only one more than Sammy "We Do Not Generally Entertain Arguments That Were Not Raised Below and Are Not Advanced in This Court by Any Party" the Hammer -- is trying, however fumblingly, to get a handle on the reality of the case at issue.

One might wish Justice Steve would be more careful about establishing his "facts," but what we're seeing here seems to me a now-familiar left-right divide between means and goals we see played out time and again, as for example in the confirmation hearings that regrettably allowed Clarence Thomas to slither onto the Supreme Court. While the center-lefties are trying to grope their way to "truth," the righties are looking only for results.

It's the basic modus operandi of right-wing "journalism," where the "journalist" starts with "the truth," as divined from the deep recesses of his stinkybutt and then for his "reporting" goes in search of factoids, or anything at all really, that buttress his "truth." Stinkybuttresses, we might call them. And when he still can't find anything, he can always just make stuff up -- like, apparently, the source cited by Sammy the Hammer for that unsourced "88 percent" number.

So is it any surprise that, when it suits Sammy the Hammer's convenience -- as, for example, arriving at the repellent conclusion the majority arrived at in the Hobby Lobby case -- he will get on his high horse to denounce the practice of "entertain[ing] arguments that were not raised below and are not advanced in this court by any party."  One might suggest that those arguments could show him up for the prejudging intellectual hooligan he is.

The Hammer is, after all, one of the Court's foremost practitioners of the out-of-left-field amicus stealth bomb. In his defense, one might point out that since just about every word he said at his confirmation hearings was a lie, he might consider that he was unusually forthcoming in the "What You See Is What You'll Get" department.

Adam L concludes his piece:

Kannon K. Shanmugam, a lawyer with Williams and Connolly who argues frequently before the court, said the justices’ quandary was a common one.

“The Supreme Court has the same problem that the rest of us do: figuring out how to distinguish between real facts and Internet facts,” he said. “Amicus briefs from unreliable sources can contribute to that problem.”

Which is true as far as it goes. Unfortunately, it applies only to situations where a person is looking for "real facts," and not just stinkybuttresses.

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Republican Obstruction Of Obama Judicial Nominees Continues

You may have thought it was ironic that one of the most corrupt of Karl Rove's slimy protégés, vote cager extaordinaire, Tim Griffin, was nominated for a House seat by the GOP and, when he won, was immediately placed by Boehner on, of all places, the Judiciary Committee! But that's exactly how the Republican Party thugs roll.

The first anyone had ever heard of a racist Republican thug in Arizona named William Rehnquist was in the early 60's when he took a bow on the national stage as a bit player intimidating black and Hispanic voters at polling places in Phoenix. Twenty years later, when Reagan nominated him to be Chief Justice of the United States Supreme Court, Time Magazine had the temerity to bring it up again:

Last week's confirmation hearings must have seemed an all-too-familiar nightmare to William Rehnquist, President Reagan's nominee to be Chief Justice, who first went through this particular mill in 1971 when he was initially nominated to the Supreme Court. Even with a redoubtable conservative ally, North Carolina Republican Strom Thurmond, at the helm of the Senate Judiciary Committee, the rumpled and bemused Rehnquist suffered some turbulent moments at the hands of liberal Democratic committee members like Ted Kennedy and Joe Biden. Although the heated hearings were not expected to hurt Rehnquist's chances of confirmation as the 16th Chief Justice of the U.S. when the full Senate votes in September, they raised some sticky questions about his sensitivity to racial issues.

Most damaging were the charges that in the early '60s Rehnquist intimidated black and Hispanic voters at polling places in Phoenix, where he was then a local Republican activist, by questioning their ability to read. Until 1964, it was legal in Arizona to challenge a person's right to vote on the grounds of illiteracy. In a 1971 letter to the Senate after his confirmation hearings, Rehnquist stated categorically that he had not "personally engaged in challenging the credentials of any voter." This time around he was more circumspect. First he claimed that his function on Election Day was to provide legal advice to Republicans assigned the task of challenging voters' credentials. Then, peppering his testimony with "I don't recall"s, he said he did not believe he had ever challenged any voter.

A far less benevolent picture of his activities emerged from the testimony of four new witnesses. Psychology Professor Sydney Smith, a Democratic poll watcher at the time, said that in the '60s he saw Rehnquist go up to two black men at the polls and say to them, "You're not able to read, are you? You have no business being here." San Francisco Attorney James Brosnahan, an Assistant U.S. Attorney in Phoenix in 1962, specifically contradicted Rehnquist's sworn testimony. Brosnahan recalled how he was summoned by panicky voters and officials to a precinct where Rehnquist was a challenger. Brosnahan said he assumed that it was Rehnquist's "blanket" challenges of black and Hispanic voters that had led to the tense situation though he had not personally seen Rehnquist challenge anyone. Nonetheless, he testified that Rehnquist's conduct "was designed to reduce the number of black and Hispanic voters by confrontation and intimidation." But Vincent Maggiore, then chairman of the Phoenix-area Democratic Party, said he had never heard any negative reports about Rehnquist's Election Day activities. "All of these things," he said, "would have come through me."

Rehnquist also owned a few homes that he wouldn't rent to racial minorities, specifically including "anyone of the Hebrew race." Typical of the Party of Bigots, Haters and Hypocrites. And I remember a fascinating passage in Nixonland by Rick Perlstein about another esteemed right-wing hack who made it onto the Supreme Court. In a discussion of how Nixon used dirty tricks or dubious legality as part of his reelection master plan he mentions a low grade administration lawyer:

Meanwhile there were the broadcast networks to flay-- four of them, now that PBS, which unlike the others was relatively free of the need to placate corporate sponsors, had matured into a fearless news powerhouse. The White House's Office of Telecommunications Policy was crafting a public-broadcasting funding bill. OTP general counsel Antonin Scalia had drafted a series of memos on how the Corporation for Public Broadcasting might be made a more pliable vassal of the White House. "The best possibility for White House influence is through the Presidential appointees to the Board of Directors," he wrote; the best way to shed the influence of "the liberal Establishment of the Northeast" would be to strengthen local stations at the expense of the national organization.

Reagan appointed him too (in 1986, when Rehnquist became Chief Justice). He faced no tough questioning and was unanimously confirmed by the worthless House of Lords. Speaking of which... Patrick Leahy, Chairman of the Senate Judiciary Committee mentioned in a press release that "[t]oday, the Judiciary Committee holds its first confirmation hearing of the 112th Congress, welcoming three nominees for lifetime appointments to the Federal bench... qualified nominees were first nominated by President Obama last year and have been re-nominated." He continued:

At a time when nearly one out of every eight Federal judgeships was vacant, the Senate last year adjourned without voting on 19 judicial nominations favorably reported by the Judiciary Committee. Attorney General Holder had warned that, "The federal judicial system that has been a rightful source of pride for the United States-- the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law-- is stressed to the breaking point." The National Association of Assistant United States Attorneys, a group of career Federal prosecutors, wrote to Senate leaders saying that, "Our federal courts cannot function effectively when judicial vacancies restrain the ability to render swift and sure justice." The Senate failed to heed these warnings.

We must do better. We can consider and confirm the President's nominations to the Federal bench in a timely manner. At the end of the 111th Congress, there were 19 judicial nominations left on the Senate's Executive Calendar awaiting a vote. These were superbly qualified nominees with a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution. Fifteen of these nominees were reported with strong bipartisan support; 13 of them were reported unanimously by the Judiciary Committee. They could and should have been considered and confirmed before Congress adjourned.

President Obama, for all his other faults, has worked with both parties to come up with credible and competent nominees that are all backed across party lines-- before being subjected to vicious partisan filibusters with no substance and for no other reason beyond naked obstructionism. No one can possibly deny he's met GOP senators far more than halfway. In the last Congress, all home-state Republican and Democratic senators supported every judicial nominee. Still, GOP Senate bullying tactics denied floor votes to 19 nominees whom the Judiciary Committee approved, mostly unanimously!
Today's Senate Judiciary Committee Executive Business meeting agenda lists 11 renominees who were approved on voice votes in Committee in the lame duck and were held over last week in Committee:

James E. Graves, Jr., to be US Circuit Judge for the 5th Circuit

Amy Totenberg, to be US District Judge for the Northern District of Georgia

James E. Boasberg, to be US District Judge for the District of Columbia

Amy B. Jackson, to be US District Judge for the District of Columbia

Paul K. Holmes, III, to be US District Judge for the Western District of Arkansas

Anthony J. Battaglia, to be US District Judge for the Southern District of California

Edward Davila, to be US District Judge for the northern District of California

Diana Saldana, to be US District Judge for the Southern District of Texas

Max O. Cogburn, Jr., to be US District Judge for the Western District of North Carolina

Marco A. Hernandez, to be US District Judge for the District of Oregon

Steve Jones, to be US District Judge for the Northern District of Georgia

None are controversial. And after all the partisan foot-dragging and nastiness, all were confirmed in an en banc voice vote this morning without dissent. America is fortunate that none are like Rehnquist or Scalia.

Didn't Chimpy the Prez always say Justice Nino was his No. 1 Supreme Court fave? Now it appears it doesn't matter how many justices agree with Nino

Supreme Court Justice Nino Scalia: What he sez, goes!

I don't know why this has me so steamed. I mean, it's not as if there's any reason to believe--now, in the year 2008--that Bush-blest bureaucrats feel in any way bound by the law in their zeal to turn the country into a mirror of the primitive thieving incompetence embedded in their souls. It's been clear now for years that, from the Smirking Simian on down (or up, depending on how you count), these people believe they can do anything they damn well please, and anyone who doesn't like it may qualify for a one-way trip to Gitmo.

But still, there's something about this. I mean, this is a Supreme Court ruling, for goodness' sake. In case you missed the story, our pal Al Kamen has it in his Washington Post "In the Loop" column today. Since I'm pretty much reduced to spluttering in any case, here it is without further comment:

EPA Chief Emits Dangerous Levels of CO₂

Environmental Protection Agency chief Stephen L. Johnson [seen at right with some pathologically smirking simian life form] infuriated pro-enviro lawmakers once more with his decision yesterday when he tightened ozone standards to a lesser degree than his scientists advised.

But he's proved himself more than capable of deflecting apoplectic members of Congress critical of his unusual stewardship of the nation's environment. Note for example, his handling of Sen. Dianne Feinstein (D-Calif.) at a recent Senate hearing.

Feinstein, who chairs the Appropriations subcommittee that controls the EPA's budget, asked why Johnson had not yet complied with a Supreme Court ruling a year ago in Massachusetts v. EPA that required him to come up with ways to regulate greenhouse gases.

"I find this unbelievable on behalf of what is called an environmental protection agency," Feinstein said, "and there's a finding of the United States Supreme Court telling you to do something."

"Well, Madam Chairman," Johnson eloquently intoned, doing a spectacular imitation of Mr. Magoo wandering about in the smog, "I respectfully disagree that this is an easy decision. . . . I think Justice Scalia actually set it up as, in essence, a three-part test for me and this would be my brief summary, and that is: If the agency finds -- if I find that there's endangerment, then under the Clean Air Act I must regulate. If I find that there is not, that's test one. If I find that there is not endangerment, then I should not regulate. Or third, if there are other circumstances . . . "

Huh? At any rate, it's clear that Johnson has paid careful attention to the Supreme Court decision and is adhering to Justice Antonin Scalia's concise test.

One small problem: Scalia dissented in that ruling. But maybe Johnson reserves the right to pick and choose from either the majority or the meaningless dissent. It's not as if a greenhouse-gas-emissions case were the only thing on his plate. "But also we have a number of pending petitions before the agency," he said, "including airlines, including off-roads, including marine, including stationary sources, including NSPS, including PSD, and I can go on and on," he said, not even mentioning the NFL, the PGA, the NCAA.

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CAN THE TINY BIT OF DAYLIGHT BETWEEN SCALIA AND ROBERTS KEEP THE SUPREME COURT FROM TURNING BACK THE CLOCK ON SOCIAL JUSTICE BY FIFTY YEARS? NAH

Evil is as Evil does

This morning's NY Times makes a great deal about reading between the lines of supposed dischord between a sour old fascist who fears his own mortality will overtake him before he overturns the last vestiges of all the social justice that came from, and flowed after, the New Deal and a much younger, but no less fascist Chief Justice who feels he has plenty of time to work the poison they both plan to administer to our nation through the packed judicial system. "Openly overturning numerous precedents early in his tenure would invite criticism that the Roberts court has an agenda to 'radically shift American law,' said Thomas C. Goldstein, a student of the court who argues there often. The conservative alliance at the court may be fractious but not fragile, strong enough to withstand Justice Scalia’s 'tweaking and needling,' as Prof. Richard W. Garnett of Notre Dame Law School describes it."

In light of this I look with trepedation at what is likely to come out of the Court today. This isn't something anyone should blame on anyone but the cowardly and purile Democrats who voted to confirm Alito and, especially, Roberts. As we explained yesterday, there are six Democrats who saddled us with this Supreme Court who are up for re-election next year: hideously reactionary Max Baucus (MT), Tim Johnson (SD), Mary Landrieu (LA), Carl Levin (MI), Mark Pryor (AR) and Jay Rockefeller (WV). I wouldn't vote for any of them. And on the Republican side... well they all enthusiastically supported the confirmations of Roberts and Alito. But there are 5 who are in electoral trouble and have been making the case in their home states that they are moderates and independents. None of them are; voting for these two radical right extremists should prove that. The 5 vulnerable Republicans who can be made to pay for the outrages of the Court are
John Sununu (NH)
Joe Lieberman's Susan Collins (ME)
Norm Coleman (MN)
Gordon Smith (OR)
Chuck Hagel (NE)

Now, about that trepedation I mentioned above. SCOTUSBlog has what to watch for. There is some talk about the conservative majority overturning the anti-segregation decision, at least partially, made in Brown v Board of Education. That would put a smile on Scalia's sour face. I wonder how Carl Levin will think about it. It would never have happened without him. Mary Landrieu is hoping African-American absentee voters displaced by Katrina will save her ass next year in the Senate race most likely to see a switch from Democrat (of sorts) to Republican. Any African-American who votes for Mary Landrieu deserves exactly what they get.


UPDATE: AND ALITO? ICING ON THE NEO-FASCIST CAKE

No one ever imagined Alito was going to be anything other than what he always was: a right wing thug with an agenda. He fits right in with Scalia, Thomas and Roberts. "Alito's vote will be key today if the court announces what could be a landmark decision about whether public school districts may consider an individual student's race when making assignments to achieve diverse school populations. 'There's no question that Justice Alito is more conservative than Justice O'Connor; there's no question that his replacement of Justice O'Connor moves the court to the right,' Washington lawyer Roy T. Englert, a frequent Supreme Court practitioner, said yesterday during a forum at the Washington Legal Foundation."


APARTHEID? IN AMERICA? AGAIN?

I know I have been saying for the last week that we had to expect it but I'm still in shock. My friend Adam put up a piece at Daily Kos that starts dealing with the ramifications of the hateful, racist 5-4 decision. I expect we'll be hearing from all the Democrats running for president. I would also like to hear from all the Democrats who voted to confirm Alitio and Roberts. Here's what Hillary, who voted against both of these catastrophic nominations, had to say today:

Today, the Court turned its back on the promise of Brown vs. Board of Education that students of different racial backgrounds deserve an opportunity to attend school together. At a time when our nation's schools are increasingly resegregating, we should be championing local efforts to pursue integration and reduce racial inequities in schools.

On the eve of the 50th anniversary of the valiant struggle to integrate Little Rock Central High School, let us remember the millions who marched, fought and even paid the ultimate price to help ensure every child in America has an opportunity to attend diverse, high-quality schools.

These decisions take away the right of local communities to ensure that all students benefit from racially diverse classrooms. Recent evidence shows that integrated schools promote minority academic achievement, and can help close the achievement gap.

Once again, the Roberts Court has shown its willingness to erode core constitutional guarantees. It is a set back for all of us who are on the long march toward racial equality and the building of a stronger more unified America. As President, I will fight to restore Brown's promise and create an education system where all children have an equal chance to learn and excel together.

UPDATE: THE DISGRACE OF THE ROBERTS COURT-- AND THE DISGRACE OF DEMOCRATS WHO VOTED TO CONFIRM HIM

Tomorrow's NY Times decries the hideous Republican 5-4 ruling in an editorial called Resegregation Now. "The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Today, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality."

Today, the court’s radical new majority turned its back on that proud tradition in a 5-4 ruling, written by Chief Justice John Roberts. It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated.

...In an eloquent dissent, Justice Stephen Breyer explained just how sharp a break the decision is with history. The Supreme Court has often ordered schools to use race-conscious remedies, and it has unanimously held that deciding to make assignments based on race “to prepare students to live in a pluralistic society” is “within the broad discretionary powers of school authorities.”

Chief Justice Roberts, who assured the Senate at his confirmation hearings that he respected precedent, and Brown in particular, eagerly set these precedents aside. The right wing of the court also tossed aside two other principles they claim to hold dear. Their campaign for “federalism,” or scaling back federal power so states and localities have more authority, argued for upholding the Seattle and Louisville programs. So did their supposed opposition to “judicial activism.” This decision is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do.

So Roberts lied to get the job. Is there any way to remove him?