DC Circuit Court of Appeals overturns Brown v. Board of Education!

by: Its the Supreme Court Stupid

Fri Jan 25, 2013 at 15:35:12 PM EST

In a decision that was both wide-ranging and as intensly partisan and activist as Bush v. Gore, the DC Circuit Court of Appeals today delivered an opinion which, in effect, overturns the landmark Supreme Court case of Brown v. Board of Education, which ruled that segregated schools are "inherently unequal".


 OK, I admit it. My first paragraph (and my title) are pure hyperbole. And quasi-snark. But, in many ways, it is true. And, an indication of just how much the decision in Canning v. NLRB (PDF)reflects both judicial activism and partisanship of the worst kind. Follow me below the squiggle as we go down the rabbit hole on this one.

Its the Supreme Court Stupid :: DC Circuit Court of Appeals overturns Brown v. Board of Education!
Article II, Section 2, Clause 3 of the US Constitution states:
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session


 On January 4, 2012, after Senate Republicans had blocked action on confirming three nominees to fill vacancies on the National Labor Relations Board, President Obama exercised the recess appointment power to appoint Sharon Block, Richard Griffin and Terence Flynn to the three vacancies on the NLRB. Without those appointees, the NLRB had been effectively blocked from any action, since there were only two confirmed members of the Board and its rules require a quorum of three for any action.

 In dealing with a challenge to a ruling from that Board, the Court of Appeals for the DC Circuit made a decision which was stunningly partisan and overbroad. They ruled that the recess appointment power is limited to only those periods between when one Congress has adjourned for good and the before the next Congress has been seated (an intersessional recess). Therefore, the appointments were invalid, as were all actions taken by the Board following those appointments.

Yet, there have been many previous recess appointments which were not intersessional. Bush made a number of them, including his appointment of John Bolton to be our UN Ambassador, as well as a number of judges. But, going back into history, one can find an even more famous recess appointment: Earl Warren.

You see, Warren's predecessor, Fred Vinson, died suddenly in September 1953. The Court was about to begin its new term, which would include reargument in the School Desegregation cases, which had been held over for rearguemnt from the previous term. President Eisenhower wanted to have the Court at full strength, particularly for those cases, which were scheduled for reargument on December 8, 1953. So, basically for administrative convenience, Eisenhower recess appointed Warren (the Senate was in a recess at the time) and, concurrently, sent a nomination to the Senate.

Warren took his seat on the Court on October 5, 1953, sat on the School Desegregation Case oral arguments and was an active participant in the argument, and fully participated in the Court's conferences on the case. Eventually, the Senate came back into session, held its hearings, and, on March 1, 1954, confirmed Warren's appointment as Chief Justice of the United States.

Now, longstanding Court precedent holds that a Justice may only participate in a decision where they have heard the oral arguments, and where that oral argument has occurred after the appointment of the Justice was effective. The Senate's recess in September/October 1953 was NOT intersessional. An intersessional recess would not occur until December 1954, when that Congress adjourned sine die. So, according to the logic of the DC Circuit in Canning, Warren's recess appointment was NOT valid, and he did not really become CJ until his Senate confirmation in March. And, according to their logic, any action he took prior to that confirmation was invalid. That means that his paritipation in oral arguments, in conferences and in writing the opinion itself was invalid. Therefore, Brown v. Board of Education should be a nullity in the law.

Of course, this is an absurdity. But, it serves to illustrate the arrogance, stupidity and partisanness of this very dumb decision. It may well be that the Supreme Court will find that the recess appointments to the NLRB were invalid for other reasons. But, this judicial activist decision was so overbroad and overboard as to really call into question the judicial ethics of the three appointees who signed this opinion.

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What other parts of the liberal agenda (2.00 / 27)
will activist judges overrule?

I am for the individual over government, government over big business and the environment over all. -- William O. Douglas

This sounds a lot like... (2.00 / 21)
Legislating from the Bench!!!!

Cue conservative screams and outrage.  Oh, wait, it was done to stop a Democratic president, not a Republican one.  Never mind.

I'm a Democrat.  Yellow.  New.  Progressive.  Blue.  Liberal.  Centrist.  We need them all in our big tent.

IOKIYAC (2.00 / 15)

I am for the individual over government, government over big business and the environment over all. -- William O. Douglas

[ Parent ]
I remember reading a few years back... (2.00 / 16)
That for all the cries of judicial activism and legislating from the bench, the left and the right on the Supreme Court were both equally likely to strike down legislation as unconstitutional.  The only difference was that the left on the Court were likely to find state laws unconstitutional, whereas the right was more likely to find federal laws unconstitutional.

I'm a Democrat.  Yellow.  New.  Progressive.  Blue.  Liberal.  Centrist.  We need them all in our big tent.

[ Parent ]
Activist judges! Run!!!!!!!!!!!!!! (2.00 / 13)
No doubt Scalia will agree....  

What does this do to Richard Condray? (2.00 / 5)
No way is the Senate going to confirm the head of the CFPB.

And WTF you scare me like that?!  (Not that I thought a lower court could overturn the Supreme Court but I'm tired and not thinking clearly [is that a song lyric?]).

"When Fascism comes to America, it will come wrapped in teh stupid and waving a gun" ~ Esteev on Wonkette

Sorry about scaring you. Just really pissed (2.00 / 4)
at a really stupid, ridiculously partisan decision.  
As far as Cordray goes, he could be in a similar boat, as his recess appointment was at the same time (but was not being challenged in this lawsuit).   Ultimately, SCOTUS will have to weigh in.  they could split the baby, overrule the DC Circuit on the issue of confining recess appointments to intersessional recesses, but find that THESE appointments were not during a recess, since the Senate was meeting in pro-forma session every couple of days.

I am for the individual over government, government over big business and the environment over all. -- William O. Douglas

[ Parent ]
This brings up a serious question (2.00 / 7)
How far back in time can you go to reverse the effects of a mistake or an illegal action?  For example, I read recently of a couple who were married decades ago and only recently discovered that they weren't really.  The officiant never signed and submitted the wedding license so they really weren't married.  Could the IRS go back into their taxes and make them refile?  Even for the last 5 years (before that, I think they are precluded, as long as there was no intentional fraud)?  What if this mistake wasn't discovered until after one of them was dead?  Even after the will had been probated?  

What if a judge really hadn't been properly appointed?  Would all of his decisions be overturned?  

Brown v Board of Education was a unanimous decision, so I'm guessing one could argue that Warren's vote was not the decider, but it makes me wonder about other cases and situations.  

That said, I think it's doubtful the SC will uphold this one.  It seems like a pretty shaky ruling.

May it be as you say. I have been depressed all day by this (2.00 / 4)
That said, I think it's doubtful the SC will uphold this one.  It seems like a pretty shaky ruling

[ Parent ]
don't give the gop (1.67 / 3)
any ideas!  

On DailyKos (0.00 / 0)
I warned last year that this would happen, that a court could rule these appointments unconstitutional. I gave all the same arguments the courts found viable, no one believed it was possible. "No way a court would rule that way" they said.

Now what?  


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