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God, and Progressives, Save this Honorable Court

by Hans Johnson
Contributing Editor, In These Times
President, Progressive Victory 

On their 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. 

Time and 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 individual liberty.

*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 health.

*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 right-wing cohort.

*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 obscene. 

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. 

Given recent 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.  

Even after 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. 

Twenty years 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.  

Today, the 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.