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.