Features > December 5, 2007

Supreme Court Inc.

The Roberts Court unravels a generation of progress

By Stephen J. Fortunato Jr.

While in law school in Washington, D.C., in the late ’60s, I heard Justice William O. Douglas explain at a public forum that his support for the Warren Court’s “criminal law revolution” was undergirded by his fear that the nation’s police stations were staffed in no small part by “crypto-fascists.”

Though his pithy phrase never found its way into any of the Warren era’s cases—many of which solidified the Constitution’s protection for those accused of crime—Justice Douglas shared with his colleagues a passion for the Founding Fathers’ luminous idea that the Bill of Rights was created to restrain, and sometimes thwart, the actions of government officials.

Along with Chief Justice Earl Warren and Associate Justices Hugo Black, William Brennan and Thurgood Marshall—as well as his more cautious brethren, Justices John Marshall Harlan and Felix Frankfurter—Douglas and his colleagues viscerally understood Chief Justice John Marshall’s famous 1819 declaration that “it is a Constitution we are expounding.” They protected and expanded free speech rights for antiwar and civil rights activists, and drew within the Constitution’s protections many groups previously excluded: racial minorities, women, prisoners, probationers and school children.

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.

There are occasional happy exceptions to this: The current court preserved confrontational rights for the accused in criminal trials and sought to ameliorate the harshness of federal sentencing guidelines. And the 2004 Guantánamo cases curbed some of Bush’s more odious powers.

Still, folk wisdom supplies the most charitable assessment of this court: Even a blind pig finds an acorn now and then.

Where does this deference to institutional power and prerogatives, with its accompanying hostility toward “average people,” come from? In 1921, Justice Benjamin Cardozo suggested an answer that was as applicable then as it is today: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”

Tellingly, no member of the current Supreme Court has ever defended a person accused of committing a felony, which means they have no experience with the dynamics of a criminal trial and have never rubbed shoulders in a dilapidated cell block with the poor and battered souls, predominantly of color, who are hauled into the nation’s criminal courts. Roberts made his fortune representing the interests of corporate America, and all members of the court were corporate, academic or governmental careerists. With the exception of Justice Ginsburg’s background litigating for women’s reproductive freedom and fairness in the workplace, no current justice came to the high court with a reputation as a champion of civil rights or poor people.

Contrast the backgrounds of the Bush-Roberts Court with those who served prior to 1986, the beginning of the court’s demise, when Reagan elevated William Rehnquist to chief justice and appointed Scalia as associate justice. Where the Bush-Roberts Court is suffused with corporate parochialism, the Warren Court was worldly. In the aggregate, it included a former California governor (Warren); a country lawyer who defended accused moonshiners and striking miners, and later served in the U.S. Senate (Black); a brilliant strategist and litigator who kicked open the legal doors of school segregation (Marshall); a trial judge from a labor union household (Brennan); an anti-rackets prosecutor (Harlan); and a Harvard Law School professor who defended Sacco and Vanzetti (Frankfurter).

Contrary to the methodology of the Warren Court, the high court under Roberts follows in the tradition of Rehnquist. It scraps the teachings of the social sciences and ignores social realities when it suits its purposes. This is illustrated by a comparison of leading cases from the socially alert court of the Warren era and the reality-blind court of the past decade. In 1965’s Miranda v. Arizona, the leading decision on self-incrimination is written in a style understandable by anyone who can read a newspaper. At the same time, it grounds its conclusions on a thorough and thoughtful analysis of government and academic studies, court records and history regarding police brutality and the third-degree interrogations police employed to extract confessions.

Thirty years later, in Whren v. United States (1996), Scalia saw no need to consider any data on racial profiling and the “driving while black” phenomenon when he wrote for a unanimous court that rejected claims by two young African-American males who said they were victims of racial profiling during a traffic stop (lingering too long at a stop sign; failure to signal a right turn, etc.). The plain-clothes officers who stopped them were assigned to a special squad concerned with drug trafficking in a “high crime” area of Washington, D.C., and were subject to a department regulation that prohibited them from enforcing traffic laws unless they observed a violation that threatened public safety.

Scalia did not reference the race of the young men until halfway through his decision, and then he scoffed in his opaque and orotund style that the intent of the officers was of no constitutional consequence. Scalia and his colleagues, even the ones the media occasionally tags as “liberal,” submitted no commentary regarding racial profiling and police practices in minority neighborhoods. For a right-wing court, like a right-wing administration, an unacknowledged problem is one that does not exist.

Scalia, who remains the court’s designated hitter to swat the Fourth Amendment’s prohibition against unreasonable searches and seizures into oblivion, garnered unanimous decisions in other cases involving claims against the police. No relief from unreasonable searches, said a unanimous court, for a white couple that was rousted out of bed and forced to stand naked before police finally realized that the subjects of their search warrant were supposed to be African American (Los Angeles County v. Rettele, 2006).

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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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