Views > July 5, 2007 > Web Only

God—And Progressives—Save This Honorable Court!

The Supreme Court’s recent decisions further underscore the dire need to beat back the right’s threats to basic fairness.

By Hans Johnson

On their tours of monumental Washington, summertime visitors often stand in awe of the Supreme Court. The gleaming white building, with its oath of “equal justice under law” proclaimed above its grand west entrance, suggests solidity itself.

Yet far from living up to that promise, the current Roberts Court has begun to tilt the scales against ordinary Americans while undermining the basic notion of fair play. In steadily reversing hard-won progress on privacy, freedom of speech, church-state separation and civil rights, a radical four-man bloc is reminding people of the precariousness of standards we had long taken for granted and the primacy of court appointments in the 2008 election.

Time and again in its term just concluded, the Roberts Court has thumbed its nose at the principle of an even playing field in American life and the value of individual liberty.

*In Carhart v. Gonzales, Chief Justice John Roberts and new bench colleague Samuel Alito overthrew a 2000 ruling by their predecessor Sandra Day O’Connor and blessed a federal bill to ban abortion with no exception for a woman’s health.

*In Ledbetter v. Goodyear Tire, the pair, joined by the trio of Antonin Scalia, Clarence Thomas, and Anthony Kennedy, threw out a woman’s job-bias claim on the grounds she didn’t cry foul fast enough. Even if the disparity in pay or treatment in the workplace isn’t immediately apparent—even if it remains in effect during the trial—the five men held that a worker must detect even devious forms of discrimination almost immediately and complain within a 180-day deadline in order to have any hope of redress. Cold comfort.

On goes the woeful saga of the Roberts Court:

*In Morse v. Frederick, the five men undercut a free-speech precedent and upheld the power of school officials to suppress even further what students say.

*In Hein v. Freedom from Religion Foundation, the five gutted another prior standard, going out of their way to shield the Bush White House from a lawsuit aimed at curbing its payola operation with right-wing churches. The ruling is a reminder that, were he to drive the money-changers from a modern American church, Jesus himself would get no sympathy from Roberts and his right-wing cohort.

*In the school diversity cases from Louisville and Seattle, Roberts, Alito, Scalia, and Thomas again seemed to taunt the nation’s legacy of overcoming hate and division through effective state action. They all but insisted that public servants confronting segregation become complicit by ignoring racism altogether or pretending it doesn’t exist.

Adding insult to the injury of these rulings are the arrogance and duplicity of Roberts and Alito, whose confirmation testimony directly contradicted their actions on the bench. As the Alliance for Justice notes, Roberts promised to be “a modest judge” who would show “humility” through his “respect for precedent.” Alito likewise pledged that he would “respect the judgments and the wisdom that are embodied in prior judicial decisions.” That judges, over the course of a long career, might qualify their pre-confirmation beliefs is understandable. That two justices on the nation’s highest court would so quickly forsake their own promises before lawmakers and the nation is obscene.

Given the gulf between common sense and the rulings of the court, it is fitting that the presidential candidate who has rooted his campaign in a pledge to reconcile the “two Americas” had the most forceful response. John Edwards deplored the Roberts court for “slamming the courthouse doors in the faces of ordinary people, favoring big businesses over civil rights, and undermining protections for women and the environment.”

For Edwards, the great divide confronting the nation’s future is between haves and have-nots. But in a welcome turn from earlier progressives, like Jimmy Carter and even Al Gore, who opted for legalism over populism, Edwards has wedded economic and social justice appeals in wooing supporters. Both are interwoven in his critique of the Bush court and his vow to restore balance to the bench.

Given recent attention to the radical bent of the high court, it was also fitting that far-right former judge and high court nominee Robert Bork stumbled back onto the scene last month. Literally. Bork, whom the Senate rejected for a Supreme Court seat late in the Reagan era, has noticeably shuffled for years while attacking frivolous injury-related lawsuits. Yet Bork filed suit in June against the Yale Club in New York alleging that the club did not furnish a handrail to its dais prior to his speech there in 2006, causing him to fall and wound his leg. Bork, his complaint states, “continues to have a limp as a result of this injury.” Thus fudging the pre-existing hitch in his get-along, the patron saint of limited liability and toast of the Federalist Society seeks a million dollars in damages.

Even after the 5-to-4 ruling by the high court in 2000 that installed George Bush in the White House, Bork remained a martyr for far-right activists intent on exerting greater authority over national policy from the bench. Progressive activists in 1987 mounted a wide-ranging grassroots lobbying campaign that set the stage for critical Senate questioning and Bork’s defeat. The campaign against Bork featured humor, street theater, teach-ins, and even some moments of majesty. Educators, labor leaders, feminists, gays, ministers, veterans, musicians, and artists joined together to spotlight troubling aspects of the nominee’s legal writings.

Twenty years later, as Democrats eye the presidency, the campaign to stop Bork holds lessons for progressives. It demystified Constitutional principles to make clear the stakes of ordinary Americans in Supreme Court decisions. And it rallied a wide-ranging coalition in defense of precedents on privacy, individual liberty, and civil rights.

Today, the need to rein in a radical court majority assailing precedents and basic fairness is more urgent than at any time in the last century. The opportunity for progressives, especially so early in the presidential campaign, is to make the courts, like the war, a rallying cry against Republicans that secures victory along with a mandate for progressive appointments. The challenge is to clearly articulate the dangers stemming from the court’s rulings and translate displeasure and distrust into allegiance and activism. The candidate who does this best will be the next president, poised to restore integrity to the Supreme Court and redeem the lofty promise inscribed above its door.

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• Reader Comments

  *In the school diversity cases from Louisville and Seattle, Roberts, Alito, Scalia, and Thomas again seemed to taunt the nation’s legacy of overcoming hate and division through effective state action. They all but insisted that public servants confronting segregation become complicit by ignoring racism altogether or pretending it doesn’t exist.”

  This is actually a very good thing. This ruling will help end racial discrimination once and for all. The basis of helping others should not be centered on race, but rather on economic status. To provide extra help for rich blacks (or their children) is absurd. But to provide help to those who are actually disadvantaged - of whatever race - will help those in the lower classes rise up to the middle class.

  Posted by wolf on Jul 5, 2007 at 8:16 AM

  It’s difficult to add much to such a brilliant piece on the erosion of our rights, so let me just say this: my 92-year-old uncle lived in eastern Europe all through the rise of the Nazis, the war, and the aftermath. A staunch Republican, he switched about four years ago and said, “America feels like Berlin in 1929.” His sense of fear about the rise of an American fascism has grown worse since then, and he notes each erosion by giving us an example from Europe which he believes is comparable. This is a man with a Master’s Degree who was a distinguished engineer for Bell Labs for decades, and he is distraught to be coming to the end of his life in fear for his beloved America.

  Posted by julianalisa on Jul 5, 2007 at 11:33 AM

  Political consultants tell us that the general public does not find the composition of the Supreme Court a compelling enough reason to pick a particular Presidential candidate, leaving it behind in favor of more “bread-and-butter” types of concerns.  I didn’t grow up eating bread and butter at my immigrant family table, so I reject that metaphor, and I reject this small-minded view of how discerning the American voter can be. 

  If done strategically and smartly, raising the real implications of what the Court can do to our pockets, our bank accounts, our bread/ butter/ rice/ poi/ etc., can and will be a winning argument in favor of a progressive vision of America.

  Posted by bdeguzman on Jul 5, 2007 at 5:23 PM

  This court seems to reflect the substance of the content that is filling the vacuum left by the demise of the “progressive class” in America. 
  In America a new revolution is being born in the cublicles of our i,t .corp. giants and fueled by a new era of workers need for basic fairness.
  Great article Hans!!

  Posted by t.bird on Jul 5, 2007 at 7:03 PM

  “This is actually a very good thing. This ruling will help end racial discrimination once and for all. The basis of helping others should not be centered on race, but rather on economic status. To provide extra help for rich blacks (or their children) is absurd. But to provide help to those who are actually disadvantaged - of whatever race - will help those in the lower classes rise up to the middle class.”

  This argument assumes that racism no longer exists and does not operate in society on any level.  This is far from true anywhere in America.  Racism is entrenched in the very fabric of our culture and most certainly has an effect on the educational and economic prospects of our children.  “Colorblindness” is really a refusal to see this truth, and only whites have the “luxury” of being able to “ignore” color.  Yes, we need to provide assistance to schools based on economic level as well, but fairness and equal opportunity require that we also offset institutional racism, which operates regardless of economic level (e.g. the black Harvard Law professor who was turned down when he tried to purchase a house in Newton, MA subsequently sold to white folks.) The facts are that non-Asian non-whites have lower enrollment and lower achievement test scores in school than whites and Asians.  This is clearly not because of disparities in intellectual ability.

  Quote from Jonathan Kozol’s latest book:
  “In 48 percent of high schools in the nation’s 100 largest districts, which are those in which the highest concentrations of black and Hispanic students tend to be enrolled, less than half the entering ninth-graders graduate in four years. Nationwide, from 1993 to 2002, the number of high schools graduating less than half their ninth-grade class in four years has increased by 75 percent. In the 94 percent of districts in New York State where white children make up the majority, nearly 80 percent of students graduate from high school in four years. In the 6 percent of districts where black and Hispanic students make up the majority, only 40 percent do so. There are 120 high schools in New York, enrolling nearly 200,000 minority students, where less than 60 percent of entering ninth-graders even make it to twelfth grade.”

  Posted by Matt W on Jul 6, 2007 at 9:33 AM

• extended discussion >>>Continued...

  Discussions with more than 5 comments are continued on our special discussion page to encourage continuity and ease of use. There are currently 25 posts.

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