It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.
This NY Times editorial is entitled Justice denied It reviews the term of the Roberts Court. The quote is from the final paragraph of that editorial. The editorial begins:
In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.
in 631 words the editorial reviews a series of decisions which represent a rolling back of the Court's protections of the less powerful:
- voluntary school desegregation
- campaign finance restrictions
- protection for consumers and small shareholders
- freedom of pricing for retail stores
- access to a full range of appropriate methods of abortion
- standing of ordinary citizens to sue (this in the faith-based initiatives case)
And a decision that did not draw the attention it should have illustrates the problem:
The flip side of the court’s boundless solicitude for the powerful was its often contemptuous attitude toward common folks looking for justice. It ruled that an inmate who filed his appeal within the deadline set by a federal judge was out of luck, because the judge had given the wrong date — a shockingly unjust decision that overturned two court precedents on missed deadline.
The editorial rightly points out the lack of truth in two arguments made by those who favored the nomination of the Chief Justice
- that he believed in "judicial modesty," because the accumulated effect of these decisions represents a sweeping change in the Court's judicial approach: several of these decisions represented a rejection stare decisis by overturning either long-established precedents (anti-trust implications of minimum prices) or recent precedents (so-called partial birth abortions)
- that he could not be put into an ideological box: he and Alito voted together "in a remarkable 92 percent of nonunanimous decisions, have charted a thoroughly predictable archconservative approach to the law."
Roberts also has not lived up to his promise to seek greater consensus, as all of these controversial decisions were by 5-4 margins.
We are already seeing the impact of these decisions. Today's Boston Globe has a story about a group of parents in Lynn MA reviving their challenge to that school system's desegregation plan after the decisions on Seattle on Louisville. I suspect this is just the beginning of what will be the roll-back of many judicially achieved victories of the past half century or more. Fully expect this Court to not only overturn Roe, even though Roberts had said that it was more than a normal precedent (Alito had refused to acknowledge that). It is quite probable that SCOTUS would uphold challenges to the legislative accomplishments of the Great Society and might even entertain challenges to some of the principles of the New Deal.
The period of the Warren and Burger courts was somewhat of an anomaly in our history. In general the Court has been more conservative than the nation as a whole, far more willing to uphold the advantages of the powerful and the corporations. In part this is because of the background of those who tend to rise to the Supreme Court. Every single member of the current Court arrived their from the Federal appellate bench. None has ever sought elective office. The legal practice has not been in trying cases, but in litigating appellate matters, with Roberts and Ginsberg having the most of that kind of experience. This tends to narrow the perspective the Court can bring to bear on cases. There is no Thurgood Marshall, who had argued cases across the country. There are no former legislators, like Sen. Hugo Black or State Senate leader Sandra Day O'Connor. While an Alito or a Thomas may have come from more modest circumstances, they seem far removed from that by their years of associating with the powerful, of benefiting from the patronage and positions granted them by politicians who favored the powerful, the moneyed, the white. It is not just that there is an imbalance in the Court, with 5 Catholics and two Jews, 77% of the Court from two religions which together represent only a quarter of the population. Four of the members of this Court have served in Republican presidential administrations - Roberts, Scalia, Thomas and Alito. The narrowness of the overall background of the Court may mean that they lack sufficient perspective to understand the implications of their decisions. Or some may simply be so ideological that they don't care.
But Courts can also reflect the mood of the nation, notwithstanding their inherent Conservatism. In 1940 the Supreme Court, in Minersville v Gobitis, allowed schools to expel Jehovah's Witnesses who refused for religious reasons to participate in the Pledge of Allegiance ceremonies. Three years later the Court, in W. Virginia v Barnette, voted 6-3 that students could NOT be required to participate, and rested that decision on a broad interpretation of freedom of speech. In the interim the Court had changed, but only 3 new justices had joined, which would not have made a majority had not two of those who had voted in the overwhelming majority in 1940 not changed their minds. The mood in the nation had changed. After our involvement in the War subsequent to the attack at Pearl Harbor, the issue of the Pledge seemed less important. Jehovah's Witnesses had been subjected to attacks, with their church buildings, called Kingdom Halls, torched in various places around the nation. Newspaper editorials had condemned these attacks, and the mood of the nation was different than it had been with the fear of the unknown future looking at the global conflict in which we were not yet officially involved in 1940.
I don't hold out much hope that Scalia or Thomas will ever pay attention to the mood of the country, or the impact of the kinds of decisions they would like to impose. I do think Kennedy pays some attention. As for the two new justices? We can only hope they will pay some attention, and moderate their approach after they see the damage their current path is imposing upon the polity of this nation.
What is absolutely clear is that the Democrats in the Senate, and those seeking the presidency, must make clear their determination not to appoint or approve judges at any level of the federal judiciary who do not view the role of the Courts as in part protecting the rights of the less powerful, of ensuring that the ideal of equal justice is not abandoned in favor of ideology, the profit motive, or political advantage.
I would suggest that those of us who do participate actively in the political process need to keep this in mind.
What do you think?