Progressives, Save this Honorable Court
Contributing Editor, In These Times
President, Progressive Victory
tours of monumental Washington, it is common for summertime visitors to
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.
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
*In Carhart v. Gonzales,
Roberts and new bench colleague Samuel Alito
threw over 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
*In Ledbetter v.
Goodyear Tire, the pair, joined by the trio of Scalia, Thomas, and
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
*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
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.
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.
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.
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.
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.