Features > December 5, 2007

Supreme Court Inc. (cont’d)

Similarly in another opinion Scalia authored (United States v. Grubbs, 2006), a unanimous court informed police officers that they had no obligation to describe the triggering mechanism in so-called anticipatory search warrants. Police obtain these warrants after an officer’s sworn representation that, at some future time, criminal activity or evidence of crime will be at a particular location. But the Supreme Court has, in effect, made these warrants perpetual by declaring that a triggering mechanism (e.g. the arrival of a particular truck at a given location) need not be described. In fairness, it must be noted that Justice Souter, joined by Justices Ginsburg and Stevens, whimpered that the better practice is to include the triggering mechanism, but they nevertheless concurred.

Not all the justices are always on the same page, but the court’s unanimous decisions reveal frequent collusion between the conservative majority and the liberal wing. And there are few significant ideological fissures in any of the court’s decisions.

The current justices are especially in lockstep with their endorsement of the existing economic order and their insensitivity to the problems of the poor and the middle class. While the Supreme Court has no mandate to redesign the economy, there are many instances where constitutional and statutory interpretation allow justices to use their discretion to choose between the predator and the prey. The Bush-Roberts Court hunts with the predator.

In 2007, in Long Island Care at Home Ltd. v. Coke, the Supreme Court unanimously held that ambiguous Department of Labor regulations exempted hundreds of thousands of home healthcare workers (mostly women) from minimum wage protection.

In a 2006 opinion for a unanimous court written by Roberts, the former corporate litigator, the court told taxpayers they had no right to challenge the State of Ohio’s tax abatements and investment credits extended to DaimlerChrysler. Taxpayers had argued that they and their communities would sustain injury because the less money DaimlerChrysler paid, the less money the state would distribute mandated revenue to its cities.

But Roberts and his colleagues offered a short lesson in neoconservative, supply-side economics: “The very point of the tax benefits is to spur economic activity, which in turn increases government revenues.” Apparently, the conservative activists of the Bush-Roberts Court have rejected the observation of Justice Oliver Wendell Holmes that “A constitution is not intended to embody a particular economic theory.”

When the DaimlerChrysler Corp. v. Cuno case is read together with Kelo v. City of New London (2005)—a controversial case permitting private homes to be condemned so that the land on which they sit can be transferred to a private developer—the result is a population stripped of all defenses against corporate power. Workers and taxpayers cannot fight against corporations that take property for the benefit of profit-making, and they are just as powerless to seek redress in court when a town’s officials give the store away to a corporation.

The Bush-Roberts Court also slammed the courthouse door shut on people challenging the Bush administration’s affirmative action efforts, which were really designed to insure that faith-based social programs would seek and obtain federal funding. Taking casuistry to new heights, the majority ruled in 2007’s Hein v. Freedom From Religion Foundation that because the funds were coming from the administration’s budget, there was no need to follow a Warren precedent, which allowed taxpayers to challenge congressional appropriations that fund textbooks for religious schools.

With rare exception, the Bush-Roberts Court has no inclination to restrain executive power.

It was this unbridled deference that led a unanimous court to uphold the Solomon amendment, which authorized a halt in federal funding for colleges and universities that barred military recruiters access to campus. An association of law schools had prohibited campus recruiting because of the military’s anti-gay “don’t ask, don’t tell” policy, but the high court—heedless of its own recent decision allowing the Boy Scouts of America to preserve its moral code by expelling a gay scoutmaster from its ranks, and unwilling to have the military rely on off-campus recruiting facilities—chose spinelessly not to defend the law schools’ efforts to protect a marginalized minority (Rumsfeld v. FAIR, 2006).

The Supreme Court’s reactionary agenda over the last decade has left few areas untouched by its restrictive reading of the Constitution. It has curtailed in various ways reproductive freedom, efforts to racially integrate schools, and First Amendment and privacy rights of high school students.

Devoid of passion for civil liberties and civil rights, and oblivious to economic injustice and inequality, this court will not change its direction any time soon. As for the possibility of change in the future, the task for progressives is to begin insisting that Democratic presidential candidates pledge now that any Supreme Court nominee during their administration will be drawn from the human rights, civil rights and racial justice communities. Not from the corporate structure that perpetuates the power of the elite.

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• Reader Comments

  Hi, Y’all !

  Really, is anyone surprised that the right-wingers are behaving like fascists? That’s what they are!

  May I state, as a qualifier, that not every republican is a right-winger. Come to think of it, we used to have Liberal Republicans, like Bush 41, before the Soviet Union collapsed and our domestic fascists needed another enemy.

  Still, let’s keep in mind that there are those in this country who wish to be rich and powerful and, since they can’t literally sell their souls to the devil, they do it by manipulating our government and twisting the laws like a balloon animal. Any time a right-winger wants to do anything or even opens his mouth, look for the way he or one of his friends profits.

  It leaves me sad and sickened to realize that we are going to have twenty to forty more years of rulings in favor of corporations and the lackeys.

  Ta-Ta !

  Posted by Aunty Rightwing on Dec 5, 2007 at 4:17 PM

  “The Bush-Roberts Court rejects this commitment to liberty and equality. Under Chief Justice John Roberts and his major domo Antonin Scalia, “the spirit of the laws” (to borrow the 18th century French philosopher Montesquieu’s apt phrase) exalts order over liberty, and institutional prerogatives—governmental or private—over the individual.”

  The Kelo ruling was a ruling so anti-liberty, anti-equality and anti-individual that States are having to write new laws to prevent the taking of ordinary, and in most cases poor citizen’s property by big business, ordained by government.
  
  Going by this article, we would probaby assume this ruling was brought down by the conservative Scalia wing of the court.  Actually, no.  The most liberal members of the court ruled against the powerless and for the powerful.  The reptilian conservatives on the other hand managed with their four brain cells between them to understand what an insult the ruling was to the intention of the eminent domain clause, and the wide open door the ruling would leave for future abuses of ordinary citizens of limited means at the hands of the powerful and connected. 

  This is just one case, but I think it illustrates why Mr. Fortunato has things exactly backward.  The alignment of the court in this case is a clue to who really is doing their job in properly interpreting the constitution, and who is truly looking out for ordinary citizens’ best long-term interests.

  The conservative wing, which includes a conservative black incidentally, embraces the constitution and its original intent and meaning.  They understand that it is truly a guide to absolute color and power blindness, if only we would be more true to it.

  It contains the kind of language used by Martin Luther King Jr., in his vision of a color-blind society.

  But when we cling to interim band-aids like affirmative action for too long, and when we let our love of big government power cloud our judgment as in the Kelo case, we lose sight of the true intentions and hopes for the citizenry laid out by the constitution.

  A little clinging is sometimes necessary, and a little cloudiness is understandable, but I would hope that we might someday soon get back on the route to true equality, liberty, and individual freedom as staked out by our eminently wise founding documents. 

  It seems that Fortunato’s favored wing of the court stands consistently in the middle of the path in this regard.

  Posted by Natalie on Dec 6, 2007 at 2:13 AM

  Welcome back, Natalie. 

  Your incisive comments on Kelo are exactly right.  Why would Fortunato argue that the Leftist Supremes’ decision in favor of stealing poor peoples’ property be the fault of Conservatives?  Leftists like Fortunato generally are clueless, but this is ridiculous. 

  Note, too, that Fortunato cited six unanimous(!) decisions in his attempt to prove that Conservatives are stomping all over the rights of the common man:

  * Whren v. United States, 1996

  * Los Angeles County v. Rettele, 2006

  * United States v. Grubbs, 2006

  * Long Island Care at Home Ltd. v. Coke, 2007

  * DaimlerChrysler Corp. v. Cuno, 2006

  * Rumsfeld v. FAIR, 2006

  So, of the eight court cases Fortunato cited as proof that the Conservatives were attacking the peoples’ rights, six were unanimous and one was a Liberal attack on the peoples’ rights.

  Then Fortunato says that “the court’s unanimous decisions reveal frequent collusion between the conservative majority and the liberal wing”.  Damn!  I know Karl Rove is good, but I had no idea he was that good.  Now how do we get the “liberal wing” to do our bidding all the time?  Troubles and problems, troubles and problems. 

  Or maybe he is just paranoid.  Did Fortunato subscribe the Truther’s position on 09/11, do you recall?

  There is some other very interesting insight into Fortunato’s sterling thought processes at http://caught.net/caught/fortun.htm.

  Posted by scorp on Dec 6, 2007 at 4:05 PM

  Hi scorp,

  Actually, when I initially wrote my post, I didn’t see there was a second page to the article.  Luckily for me I noticed before I posted.  I never thought he would even mention Kelo.  But on page 2 he did, and although he didn’t actually say so, he certainly endeavored to make the implication that the decision was driven by the “Bush-Roberts” wing of the court.  A tricky little trick to tar the conservative wing using technically correct designations, I would strongly suspect.

  “Workers and taxpayers cannot fight against corporations that take property for the benefit of profit-making, and they are just as powerless to seek redress in court when a town’s officials give the store away to a corporation.

  The Bush-Roberts Court also slammed the courthouse door shut on people challenging the Bush administration’s affirmative action efforts......”

  But looking at recent decisions, it would be just as accurate to call the court the “Clinton-Ginsburg court”.  I guess that just wouldn’t have the same appeal here.

  Deceptive “journalism”, at the very least.

  Along with what you pointed out about the unanimous decisions.  Yes, Breyer and Ginsburg are in the pockets of Monsanto and AT&T;, not simply (once in a while) interpreting laws that have been made by the congress. 

  I think his problem is really that he’s sad that the court, even the lefties, don’t routinely vote to abolish all laws against criminals, the death penalty, and to require all police officers to pull over suspects according to some racially proportionate chart.

  I think he thinks that just because the court finally saw how racial and sex-based discrimination was counter-constitutional, that it means they shouldn’t stop there, they should actively intervene in the battles of society and play not only judge, but legislator.

  I saw that caught.net article, but didn’t have time to evaluate it.  Thanks for posting the link. 

  It really wouldn’t surprise me if this guy was a “truth” zombie.  His article is deceptive and inaccurate, just like “truth” stuff.

  It’s an excellent barometer with which to measure a person’s critical thinking skills, however, I “judge” that he’s at least smart enough not to let on.  But, the web might just reveal something given the right search terms—I’m not aware of anything, however.

  Posted by Natalie on Dec 6, 2007 at 5:07 PM

  I didn’t see any reference to Santa Clara County v. Southern Pacific Railroad (1886), in which the Court decided that the State of California could not tax corporations differently than it did individuals. It is very often cited as the decision that, in effect, granted corporations the status as legal “persons” and therefore protected by the due process clause of the 14th Amendment. They were then considered to be entitled to Constitutional protections as though a living human being.

  The timeframe of the article was much more recent than that decision, but there’s no doubt that as a precedent, it has had a profound effect on the role of corporations in legal and popular culture. It’s rare that anyone questions the validity of the “corporation as person” analogy, these days.

  Probably most people don’t regard it as questionable.

  It does occur to me to wonder whether an entity that is a creation of human beings, but that is not limited by natural lifespan or human frailties, ought to get the same rights as you and I. Perhaps it has some level of functionality, but in a legal contest between an individual and a corporation, where the latter may well have a lot more resources it can bring to bear, it’s hard to see how the legal playing field is inherently even.

  Posted by Kuya on Dec 7, 2007 at 2:19 AM

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Also by Stephen J. Fortunato Jr.

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