While reading my books on the Roberts Court (Coyle’s, and Tribe & Matz’s), I came to the conclusion that, over the next twenty years, the TYPES of important cases being heard by the Supreme Court will undergo a shift. Indeed, the future is now– that shift has already begun.
As cases concerning discrimination move gradually out of the spotlight, the big cases of the next generation will, more and more, be cases concerning: 1) the issue of “standing,” 2) privacy issues, 3) and the U.S. government’s trending expansion of its use of force.
Both books I read for this post mentioned the already-growing number of cases in these three fields. The first, standing, concerns the ability of would-be plaintiffs (those filing a lawsuit) to possess the qualifications necessary for a person to even BRING a case to court in America.
To possess adequate “standing” to sue… 1) the plaintiff must have suffered or will imminently suffer a real injury, 2) the plaintiff’s injury must be due to an illegal activity (well, an alleged illegal activity at this point), and 3) the court must be in a position to actually DO something about it– whether it’s awarding damages, or locking-up the bad guy, or whatever.
The thing about “standing” today is that both Government and Business have figured out how to keep certain suits against them from ever being judged on the merits at all.
Following is a short list of some of the conditions cropping up more and more, which are keeping people from being allowed to make their case before a court of law…
time-limits when it comes to brining a case
arbitration clauses supposedly precluding lawsuits
waivers (similarly allegedly precluding lawsuits)
Federal pre-emption of State or Local laws
relatively high burdens of proof
limited ability to qualify for a class-action suit
courts avoiding “political” questions & giving “state security” claims a wide berth
For example, in 2011, Dennis Kucinich, a member of the U.S. Congress, sued the Obama administration for acting illegally when it bombed Libya without legislative approval. Mr Kucinich’s was basically tossed out on his ear… for lack of, you guessed it… proper standing. The question with these kind of cases then becomes… If one can’t use the courts to stop such apparently illegal activities, then how IS one supposed to stop them?
One answer might be that Congressman Kucinich and his fellow legislators should impeach the President when he oversteps his bounds. But, in the real world, successfully impeaching a sitting precedent is about as likely as catching a fly with chopsticks– maybe in the movies, pal, but not likely in the real world.
And, yeah sure, “elections” is another easy answer. But there’s a couple of obstacles here. One is, obviously, the time-delay element. And mixed in with the delayed response of elections is the tragic truth that important events pass by either unrecognized as such, or else are quickly replaced in the country’s consciousness with a newer political issue– or the latest celebrity gossip. I like to think of the consciousness of my fellow citizens as being like unto a pea-pod… only a tiny handful of tiny things can fit inside at a time, and when try to squeeze an additional pea inside — pop!– some other pea squirts out.
And with the American attention-span being less than that of a really determined ant, some quick overseas-action that took place over two years ago– without even get a sustained treatment in the Press– will not be much remembered come election day.
Furthermore, we all know that in reality, our country is a two-party system, and the choice to throw the bum out isn’t all that easy when you find yourself vehemently disagreeing with 10% of the incumbant’s decisions, but knowing also that you’re likely to just as vehemently disagree with 90% of the decisions that the alternative candidate would make.
Another recent case in which standing was the major issue (as far, at least, as the Court was concerned), was Clapper v Amnesty International, in 2013. In that case, journalists and human rights activists claimed to have been “injured” by a new rule allowing the Federal government to surveille foreigners. The plaintiffs contended that they were incurring expenses and other hardships as they attempted to maintain confidentiality in the new Bigger Brother environment. The group was practically laughed out of court, the Justices stating that their claims of “injury” were based merely on what the plaintiffs felt could maybe potentially harm them. [I haven’t yet studied the case directly, so I’m not sure why it’s “Clapper” suing “Amnesty”].
And, to cite just one more example, the Ninth Circuit Court Of Appeals, in 2010, refused to even hear a case brought by citizens accusing the CIA of using “secret rendition” to move suspected terrorist supporters to foreign countries to undergo interrogation techniques possibly disallowed under American law. These guys were apparently nowhere near having proper standing.
One case which broke my heart in the realm of federal pre-emption of local law was the recent Montana election case in which the State had to throw-out its 100-year ban on corporate financing of STATE elections, in deference to U.S. campaign law and its interpretation by the Supreme Court.
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The privacy-issues coming to fore are being driven by the Corporate and Governmental applications of new technologies.
Some privacy-issues starting to come up include…
GPS tracking, heat-emanation readings, et cetera
illegal searches (via a wide variety of means)
questioning whole house of cards that is the contended “right to privacy”
informational privacy in regards to business transactions
privacy issues in regards to associations or petitions or other areas
privacy-related applications of the seemingly limitless power of the Feds to regulate “interstate commerce”
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Technology is also affecting the government’s use of force — against both non-citizens and citizens– and at a level increasing in multiple dimensions at once: in intensity of force applied, in the number of different situations force is being applied, and in the categories of weaponry being utilized. Modern tech gives government a larger tree to hide behind when it comes to shielding itself from accusations of abuse of power. A precision drone strike against an alleged criminal halfway across the globe somehow doesn’t seem as upsetting as a suspect being gunned down on the street by a local cop.