Thursday, July 05, 2007


By William Fisher

If you listen to their rhetoric, the mission of the Conservative movement is to get big government off the people’s backs and out of their lives, live by what the framers of the Constitution intended, and help the least of us to enjoy the same liberties as the most of us.

That’s what they say they expect from our lawmakers and from our courts. And they’ll tell you it’s the reason they get apoplectic about what they call “activist judges.”

If we needed any more proof of their hypocrisy after the disgrace of the Terry Schiavo affair, it would be easy to find in the decisions of the Supreme Court session just ended.

The Supreme Court is supposed to be the last resort for the least of us, the one door always open to ordinary citizens seeking justice.

So consider how the Court ruled this term:

It struck down the modest and voluntarily adopted plans of Seattle and Louisville to re-integrate their public schools. By a 5-4 vote, the Justices decided, as The New York Times put it, that the equal protection clause of the14th Amendment was really intended to protect white students from integration.

It ruled against an prison inmate who filed an appeal based on a deadline set by a federal judge because the judge gave him a wrong date.

It overturned a jury’s award of $79.5 million in punitive damages against cigarette manufacturer Philip Morris.

It ruled that it was OK for manufacturers to impose minimum prices on retailers.

It upheld the federal ban on so-called “partial-birth” abortions.

It ruled that taxpayers lacked the ‘standing’ to challenge the Bush administration’s faith-based initiatives.

And it rewarded the most powerful of us by striking down parts of the campaign finance law that limited the funding of so-called “issue ads” by wealthy contributors.

Most of these decisions will make life tougher, not easier, for the least of us. And some thumbed their noses at the stare decisis riff that Chief Justice John Roberts sang so sonorously during his confirmation hearings.

The Philip Morris decision overturned a ruling by the Oregon Supreme Court based on the manufacturer’s 40 years of lying about the connection between smoking and cancer. The campaign finance ruling was a gift to big money interests and the K Street mob. The retail price case, another gift to the rich and powerful, overturned a 96-year-old precedent. The missed deadline case overturned two previous decisions. The faith-based case sidestepped the Constitution’s separation of church and state mandate, but ignored the role of the Court itself as the last safe harbor for ordinary citizens who are hurt when government policies damage the society they live in. In the so-called abortion case, the Court overturned its own 2000 decision, which mandated protection for the health of the mother. And in the racial integration cases, the justices stood Brown v. Board on its head.

The ideology of the current court has been cemented by the addition of President Bush’s two nominees – Chief Justice Roberts and Justice Samuel Alito. During their confirmation hearings, these two men went to great pains to paint themselves as “incrementalists” who regarded stare decisis – previous decisions – as near-sacred. They testified ad nauseam to their “modest” approach to legal change.

Having used these platitudes to snooker enough members of the Senate Judiciary Committee to win their lifetime seats on the nation’s highest Court, they are now to free to join their two ideological brothers – Justices Antonin Scalia and Clarence Thomas – to form the solid four in five-to-four decisions. The fifth brother is Justice Anthony Kennedy, who was expected by some to stand in the “middle ground” so often occupied by now retired Justice Sandra Day O’Connor.

But the folly of that expectation should have been clear when Justice Kennedy, in his partial birth abortion opinion, paternalistically cautioned that upholding this surgical procedure might cause women to do things they might later regret. Someone needs to tell Justice Kennedy the 19th Century is over!

So what exactly are these so-called Conservatives conserving? The interests of the richest and most powerful among us? The idea that women need daddies to help them reach rational decisions? The integrity of the Constitution and the decisions of lower courts? The Constitutional glue of precedent?

There are indeed times when precedent impedes progress and obstructs justice. That was true when the Supreme Court of Chief Justice Warren Burger overturned a half-century of Plessy v. Ferguson “separate but equal” racial doctrine to rule that separate could never be equal.

Then, and at most times in our country’s history, overturning precedent has been in the service of increasing freedom for the least of us. This Court term has seen a 180-degree turn away from that proud tradition. It has resulted in less, not more, freedom.

Conserving the freedoms of the least of us seems to be what Conservatives have forgotten.

Today’s Supreme Court makes you wonder how Conservatives define “judicial activism.”