The War on Modernity

Who is best friend to big corporations, social conservatives and Georgie Bush’s family? The five less-than-superior intellects who sit for a lifetime on the highest court of the land. Roberts, Alito, Scalia, Thomas and, in the majority of cases, Kennedy — serving the same vision that drives the radical Imam, the Taliban, the Christocrats, the Federalist’s … turning back time.

I suppose our current situation is just deserts for the lethargic … even wimpy … response of Congress, two years ago to the month, in confirming Roberts, with his tidy hair and mild manner — he was sold to this nation as “noncontroversial.” He was also the man who, as a lawyer for Pappy Bush’s administration wrote a paper saying “Roe was wrongly decided and should be overruled.” Roberts conservatism was obvious but he was such a “gentleman” … had such a fine resume … nobody would give him a hard time. Besides, he talked a good story. “My practice has not been ideological in any sense,” said he.

Alito was next, by October of 2005 — less attractive, more belligerent, more overt — but still we couldn’t nail him on his actual judicial intention; if you remember that vetting, he stonewalled on just about every question. At the time, 50% of Americans felt that a filibuster against his confirmation would be justified due to his rulings on reproductive rights — it didn’t happen.

It’s no coincidence that five justices — THE five — are Catholic; all but Kennedy are members of the Federalist Society, a parent organization for conservatives and libertarians. You know my concerns about the mix, with Kennedy the moderate swing. The last two candidates were hand picked by Cheney — that should say it all.

I’ve been given opportunity to preview Jeff Toobin’s soon-to-be-released book, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT. I’ll let you know what I think, when the time comes — but I’ll betcha it says what those of us following closely already know; the personal characteristics of the four hard-core justices serves as an e-brake on our entry into the 21st century. The only way to remove a Supreme is by impeachment — unlikely considering their cloistered environment, and consciousness. Let’s hope the health of the four liberal justices, no spring chickens, holds out until 2008 — even they have a less than populist tilt, but they’re the only ballast to a court gone repressive.

Sandra Day O’Connor has been very outspoken since she left the court — I wonder if she loses sleep, thinking how quickly her colleagues began to turn back time once she walked out the door.

The Supreme’s, below.

Jude

Kucinich: Impeaching Cheney first step to restoring the rule of law
David Edwards and Josh Catone, Raw Story
Thursday July 12, 2007

Speaking at the NAACP-sponsored candidates forum in Detroit today, presidential candidate Rep. Dennis Kucinich (D-OH) called for the impeachment of Vice President Dick Cheney.

In response to a question about how candidates would promote equal opportunity and integration among America’s school Kucinich took a jab at the US Supreme Court, saying that they’re working from an outdated constitution that is missing the 13th, 14th and 15th amendments, which abolished slavery, defined citizenship rights for former slaves, and granted suffrage to non-White citizens, respectively.

“But there is a 13th, 14th, and 15th amendment,” said Kucinich to growing applause. “And we have to have equality of opportunity, and we have to make sure there’s equal protection of the law, and we have to make sure that’s enshrined in the way that we conduct our policy.”

Kucinich said that as president he would appoint judges who believed in the Constitution, and concluded to loud applause, “And, by the way, if we’re going stand for the Constitution and the rule of law, we can all start now by saying it’s time to impeach Dick Cheney.”

The following video [open link] is from CNN’s Live Video, broadcast on July 12.

Chief Justice George Orwell Writes For The Majority
Rick Perlstein
June 30, 2007

Justice Roberts, “restricting the ability of public school districts to use race to determine which schools students can attend,” wrote for the plurality of Scalia, Thomas, and Alito that, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.”

If I were a high school teacher and young Johnny Roberts wrote this on an exam on civil rights history, I would give him an “F.” The idea that the Chief Justice of the Supreme Court could cough up such a ludicrous hairball is evidence of a nation gone mad with amnesia. Or, if you prefer, a conservative intellectual class that knows the history full well, and has simply let itself lie.

Do educated people really need this explained to them? It wasn’t merely “before Brown” that “schoolchildren were told where they could and could not go to school based on their color of their skin.” It was long, long after the Supreme Court’s unanimous decision in Brown v. Board of Education of Topeka - for the next seventeen years at least.

I mean, do I really have to explain this? In 1955, the year after Brown, the Supreme Court specified the compliance language for the first decision: Southern school districts would have to comply “with all deliberate speed.”

Instead, they did not comply at all. Instead, the region staged a self-consious movement of “Massive Resistance.” Nearly every Southern congressman signed a manifesto pledging to defy the Court by “all lawful means.” In Virginia senator and former Klansman Harry Flood Byrd’s minions pushed through the state assembly an order to close any school under federal court order to integrate. And in 1957 in Little Rock—well, has Justice Roberts never heard of this?

Since most Dixie municipalities had one school district for whites and another entirely separate district for blacks, and simply did nothing, the federal courts in 1964 ruled that all “dual school districts” not already under court order to do so would have to file desegregation plans with the Department of Health Education and Welfare. Congress was able to help in 1965, after the passage of the Elementary and Secondary Education Act provided the first serious federal funding to local school districts. Since the 1964 Civil Rights Act had provided that no segregated public institution could get federal funds, this was, finally, a chance to punish the vast, vast majority of Southern school districts who - read this carefully, Justice Roberts—11 years after Brown outlawed telling schoolchildren where they could and could not go to school based on the color of their skin.

By that point only 6 percent of Southern schoolchildren attended classes with children of another race. How did we know? Because the federal government counted.

In 1966, HEW published guidelines specifying that schools with no black students or staff would have to show evidence of “significant progress”; those with 4 to 5 percent black students or staff would have to triple that number within the ‘66-’67 school year; those with 8 to 9 percent would have to double them.

How did the South respond? By openly defying the law. In the same manner as a criminal, told to halt by police, but simply ran as fast as he could in the other direction.

Alababa Gov. George Wallace had the entire state’s congressional delegation stand by his side as he read a statement calling the guidelines “illegal,” totalitarian” and a “blueprint devised by socialists.” His school superintendent said that under the Alabama constitution and by the “absolute mandate in the recent statewide election” districts were actively forbidden from complying. And he got a standing ovation, in an address broadcast on statewide TV, for claiming the new guidelines had “the unqualified, 100 percent support of the Communist Party USA, as well as all its fronts, affiliates, and publications.” And 18 of the 22 senators from the states of the Old Confederacy signed a letter to the president calling the revised guidelines an “unfair and unrealistic abuse of bureaucratic power.”

Two years after that, 14 years after Brown, the vast, vast majority of Southern school districts still told schoolchildren where they could and could not go to school based on the color of their skin. How did we know? The federal government counted.

The Supreme Court revisited the issue May 27, 1968, handing down a unanimous decision concerning New Kent County, Virginia, a rural district with two schools, an evenly scattered black and white population—and 21 separate bus routes to keep those schools racially segregated. Green v. New Kent County rang with eloquent finality: “This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable.” School districts now had to “fashion steps which promise realistically to convert promptly to a system without a ‘white’ school’ and a ‘Negro’ school, but just schools.”

How did the South respond? In the same manner as a criminal, told to halt by police, but simply ran as fast as he could in the other direction. How did we know they weren’t following the law? The federal government counted.

Although by then, the South had a powerful ally for their intransigence. That spring week in 1968, Richard Nixon, salivating to lock up the South to win the presidential nomination, traveled to Atlanta to meet with its state Republican chairs and promised a President Nixon wouldn’t enforce the law. He did so arm in arm with Sen. Strom Thurmond, who had just released a new book arguing that the cause of “the War Between the States” was the “social revolutionaries” who “refused to stop at the Constitutional barrier” of Dred Scott v. Sandford. That was the 1856 decision in which Chief Justice Taney declared that free blacks “had no rights which the white man was bound to respect.” One of the “social revolutionaries” who refused to stop at the barrier the founder of Strom Thurmond’s political party: Abraham Lincoln.

President Nixon kept his word. He let them defy the law. In the same manner as a criminal, told to halt by police, but simply ran as fast as he could in the other direction. Only this time their police chief, Richard Nixon, told them to stand down and let the criminal flee. The bureaucrats—whose job was the counting—quit in disgust. The federal government wasn’t counting as carefully. And—wouldn’t you know it?—the South kept on openly defying the law.

On October 30, 1969, the Supreme Court tried again—this time with the solicitor general of the United States arguing for the first time in history against school desegregation. He lost. Alexander v. Holmes County Board once more—you’d think things were getting redundant—outlawed dual school systems.

Fifteen years after Brown, when according to the current Supreme Court Chief Justice, schoolchildren were told where they could and could not go to school based on the color of their skin.

Can you guess how the South responded? By openly defying the law. The police chief told them that was just fine.

Nixon finally gave up with the 1971 decision Swann v. Charlotte-Mecklenberg. His reasons were political. Going into his reelection campaign, he realized the justices had granted him a favor. He could ruefully observe, I have consistently opposed the busing of our nation’s schoolchildren to achieve a racial balance, but there is nothing I can do about it because the Supreme Court has tied my hands. Busing (always a canard, for as American should have seen in New Kent County, busing was far more often a tool for segregation than integration) would give something for Democrats to scratch each others’ eyeballs out over during the primaries. And provide all the more reason, if you hated “busing,” to vote for Richard Nixon: he would nominate more conservative judges.

And thus—pay attention, Justice Roberts—17 years after the Supreme Court made it the law of the land, for the first time it became difficult, as a practical matter, to tell schoolchildren where they could and could not go to school based on the color of their skin. Civil rights attorneys, and the federal government, devised mechanisms to try to assure it couldn’t happen again. These required—obviously—counting how many blacks and how many whites attended various schools.

Which is what Justice Roberts just outlawed. We can’t count any more. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

Because counting is racist. Note the assumption, as false as the claim that the sun rises in the west, that Americans only counted how many children of each race attended certain schools before the 1954 decision, and only then to make sure no blacks attended white schools. And that, after that, the counting stopped.

Roberts says: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Well, here’s a question for our Chief Justice. We have been following, here at The Big Con, the story of Jena, Louisiana, where

In September 2006, a group of African American high school students…asked the school for permission to sit beneath a “whites only” shade tree…. The school said they didn’t care where students sat. The next day, students arrived at school to see three nooses (in school colors) hanging from the tree…. The boys who hung the nooses were suspended from school for a few days. The school administration chalked it up as a harmless prank, but Jena’s black population didn’t take it so lightly. Fights and unrest started breaking out at school…. Black students were assaulted at white parties. A white man drew a loaded rifle on three black teens at a local convenience store…. on December 4th, a fight broke out that led to six black students being charged with attempted murder…. the D.A. pushed for maximum charges, which carry sentences of eighty years. Four of the six are being tried as adults (ages 17 & 18) and two are juveniles….

And to be sure, that’s a whole lot of hassle, easily prevented if, quietly, Jena’s school districts were sedulously redrawn so that blacks and whites attended separate schools. Though call me crazy—when official municipal policy judges blacks as attempted murderers for the same actions whites commit without consequences, is it that hard to imagine that within Jena’s dual school system, the black schools might be less well taken care of? And that those same town fathers who claim they deliver equal justice to blacks and whites would claim these schools were equal, even if separate? That, as Chief Justice Earl Warren ruled with ringing finality in that decision Justice Roberts affects to so respect, “separate but equal,” when the separation is between a historically privileged race and a subaltern one, is inherently unequal?

Under Justice Roberts’s new ukase, we would never know. We wouldn’t be allowed to call Jena’s new schools “separate.” Because that would require counting how many students of each race attended them.

And we can’t do that. Because counting is racist. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

It’s Scalia Time
David Michael Green, The Regressive Antidote

Thirty-three years ago, on assuming the presidency in the wake of Richard Nixon’s resignation, Gerald Ford famously sought to ease the worries of a troubled nation with these words: “My fellow Americans, our long national nightmare is over”.

Today, I am tempted to offer a warning, not a palliative: My fellow Americans, our long national nightmare is just beginning.

I say this because, just as the Bush administration and the regressive political movement of which it has been the most recent and most potent manifestation are recessing into a toxic pool of failure, incompetence, disaster and public abhorrence – purely of their own making – the politics they represent have now been all but firmly established on the Supreme Court for the foreseeable future. Like a nice case of herpes, this is a gift that will keep on giving for a very long time.

It is also precisely according to plan. The Supreme Court is arguably the most powerful lawmaking institution in American government – the be-all, end-all and final stop for any policy debate in which the country is engaged – and was therefore always the great prize for the cancer of regressive politics which has been metastasizing in America since Reagan, if not earlier. The presidency was always important to the right, and Congress too, especially the Senate. But the chief importance of these institutions was ultimately their capacity to serve as vehicles for remaking the third branch of government, by loading it up with young reactionaries serving lifetime terms, who would therefore sit on the bench making policy for a very, very long time. And who, by virtue of the Constitution’s design, would be all but untouchable by any influence, check or balance, likely including public opinion.

That this was crucial to movement conservatives became obvious in one of the rare episodes where actions taken by King Bush manage to enrage them, and where they abandoned and reviled him across the miasma of their noxious talk radio swampland. When a second vacancy on the Supreme Court opened up, Bush’s instinct was to choose someone he could count on to stand foursquare behind his single most important issue in all of American politics. So he chose Harriet Miers, a sycophant’s sycophant, whose most compelling credential was unquestioning loyalty to The Man, a loyalty that even a guy with Bush’s level of prescience could foresee would be very necessary in the years to come. That was his issue – not abortion, not Guantánamo, not school prayer not stem cells – just finding a reliable vote to keep George out of jail no matter what.

Conservatives went crazy at this real and apparent betrayal. This was supposed to be their big moment, the opportunity they had been scheming and striving toward for decades, and what does Bush do (after they had spent years backing him, right down the line)? He nominates a candidate for the court who was all about George, not about regressivism. Miers possessed neither the dependability of a solid conservative record to assure them she wouldn’t become another Blackmun, Stevens or Souter and move to the left while on the Court, nor the intellectual heft to shape its decisions or to persuade other justices to vote for regressive policies. So the movement hammered its own president, Miers withdrew her name from consideration, and they got Sam Alito instead.

Then we all got Alito. Stupidly, and with great cowardice aforethought, Senate Democrats helped confirm both Alito and Roberts before him, both of whom had learned from Robert Bork’s experience that honesty is, ahem, not always the best policy. Are you a Neanderthal who wants to be on the Court? My advice is to hide your politics well while testifying before the Senate. There’ll be a lifetime of opportunity later to swing your wrecking ball as wide as you want. Meanwhile, though, refuse to take any position (even previously articulated positions) on the principle that every case is unique and you can’t commit to a decision on future matters. Be sure, also, to hide behind vague judicial platitudes like your general respect for honoring precedent. If you want to really do it up right, like Clarence Thomas did, you can even pretend that you’ve never really thought much about abortion, probably the single most controversial issue in American politics prior to the Iraq war.

Trust me, Democrats in the Senate will not block your confirmation. Many will even vote for you. Some will go so far as to publicly sing your praises. Then, once the vote is in, you can party down all you like. There’s no going back.

And so it was that the regressive movement got its great and long sought after prize – a Supreme Court so backward that many of its decisions would have looked retro even in the nineteenth century. And not just the Supreme Court, either. Between Reagan and the two Bushes – not to mention classic Clintonian centrism in judicial appointments – the entire federal judiciary is now heavily stacked with right-wingers pledged to maintain their destructive march to the sea, and all of them sitting in jobs with lifetime appointments. This was the movement’s great quest all along, and the decisions of the Supreme Court this year demonstrate the scope of their victory, with far more to come.

There is now a relatively solid five-member reactionary majority on the Court for most every question put before it. Where Sandra Day O’Connor was once the swing vote on the center-right of the court who would curb some of its worse excesses, that position – but not with the same politics – is now occupied by Anthony Kennedy, arguably the most influential and powerful person in American government today, at least on domestic policy questions.

The current Supreme Court is today comprised of two more or less solid blocs. On the right is the really scary Scalia camp, which also includes clones Clarence Thomas and Samuel Alito, and which also gets the vote – albeit usually dressed up in a pretty bow to appear less threatening – of Chief Justice John Roberts. There is no left on the Court, with the possible exception of John Paul Stevens, and the reference by many commentators to the ‘liberal’ Supreme Court faction is a misnomer. Souter, Ginsburg and Breyer are classic centrists, very much in the manner of the presidents – George H. W. Bush and Bill Clinton – who appointed them. Perhaps from the distant perspective of Scaliaville they may appear liberal, but then so also might Augusto Pinochet.

In any case, those four quite frequently vote together in an attempt to block the worse excesses of the radical right. Nowadays they usually lose, because kingmaker Kennedy – who almost single-handedly, by casting his vote with one or the other of these blocs, decides the law of the land – mostly votes with the regressives, especially on the important issues, and certainly more so than O’Connor did when she occupied the catbird seat.

What does that mean in terms of the law of the land in America? What best characterizes the Roberts Court (or should we call it the Scalia Court?, or the Kennedy Court?), more than anything else, is its worship of power. If one is looking for a single narrative theme by which to draw a thread through the Court’s decisions, the best summary concept of the majority’s position is that the powerful in society should be even more powerful, and the little guy should be squeezed and squashed at every opportunity.

That means that the very doors to the courts themselves should slammed in the face of many of those who formerly might have had a day in court. Looking back at the record of the last term, this theme was so pronounced that Yale Law School professor Judith Resnik dubbed it “the year they closed the courts”. That means that opportunities to be heard for potential appellants rotting away in jail or facing the death penalty have diminished to the point of near extinction. Even, remarkably, in situations where they suffer due to little or no fault of their own. In one case this year, an inmate’s lawyer filed a brief three days later than the standard deadline, because a federal judge had given the lawyer the wrong date. Too bad, said the hard-core right. Motion rejected without consideration. (The story is, of course, a little different if your name is Libby, though.)

It means that business, especially big business, grows ever more untouchable with every decision handed down by this court, leading Robin Conrad of the US Chamber of Commerce to remark, “It’s our best Supreme Court term ever”. Indeed. Somehow, though, I don’t think the same will be said by investors and shareholders who are now less able to hold company management culpable for their misdeeds than they used to be, on the basis of Court decisions this term. I don’t think it will be said by consumers who will pay the literal price for the court overturning a century-old antitrust precedent which has long blocked price-fixing collusion between manufacturers and retailers. And I don’t think the widow of a smoker who was awarded massive damages against Philip Morris, only to have those tossed out by the Supreme Court, will be calling this the best term ever.

The bias toward power in this court means that racial minorities will no longer benefit from school integration programs seeking to promote opportunity, integration and diversity. Those days are now over, by a five to four vote. It means that abortion access was narrowed this year, also 5-4. It means – in a truly absurd and highly revealing stretch – that the Court has now made it impossible for employees to sue for salary discrimination any time beyond 180 days from the receipt of each paycheck. So if you find out years or decades later that your pay was considerably lower than that of your coworkers because, say, you’re a woman – which was precisely what happened in this particular case – too bad. Thus making it almost impossible for workers to get what is owed them, and providing enormous incentives for employers to discriminate rampantly with little potential cost for doing so. Can you guess the vote on this case? Hey, you’re catching on!

The list goes on and on. There is even the occasional exception, but the theme is powerful and dominant. This is your Court. This is your Court on regressivism. Any questions?

We should probably get used (which does not mean lay down) to more of the same, and very likely worse to come for the foreseeable future. Anything can happen to anyone at any time, but most of the members of the Court look like they can remain there for a long time if they choose to. The right-wingers were purposely chosen in part for their youth, and only Scalia (71) and Kennedy (70) from that crowd are at all up in years. Yet they could have another twenty years on the Court at that age, and of course, even were either of them to leave now, their replacement would be a Bush appointee. Meanwhile, those progressive readers of this article who are disposed to making appeals to supernatural deities may wish to include John Paul Stevens in their prayers. He is both by far the oldest member of the Court and its most liberal. I doubt seriously he could be pried away from his position while George W. Bush is in the White House, a supreme act of patriotism for a man who might want to retire for a few final years of rest. How old is Stevens? He was appointed by Gerald Ford, a president not so many Americans could today distinguish from Millard Fillmore. He wears bow ties, okay? He’s 87. To say we’re lucky to have him is the understatement of the decade.

So the best-case scenario for progressives right now is not very good at all. It involves essential stasis, with perhaps Stevens being replaced two to five years from now by a Democratic president’s choice, if we’re moderately lucky. And unless that president is Al Gore, chances are such a replacement will be another Clintonian centrist, less progressive than Stevens, but nevertheless part of the non-troglodyte bloc. Then, of course, there is the question of whether Republican senators, assuming there are enough left after the tsunamis of 2006 and 2008 take them out, would allow even a centrist nominee, let alone a progressive, to be considered (in the Senate, sixty votes are effectively required to do anything). But even after all that, we’re still left with a largely solid regressive majority of five on the Court, continually turning the clock back to Great Grandpa’s golden years, when economic and political elites were all powerful. No more of this middle-class BS anymore. No more of this equality crap. That was all so very twentieth century.

The great ironies of all this are at least two-fold. The first is that this regressive judiciary has now only fully consolidated its power at the very moment when its core ideology is being repudiated by the public, and that repudiation is showing up powerfully nowadays in the other two branches of American government. Congressional Republicans got a “thumpin’” in 2006, and now see that 2008 looks far worse. Accordingly, they are opening up Grand Canyon-like fissures between themselves and a Republican president who is in the process of transitioning from just plain unpopular to truly despised. And yet it is this very same loser ideology which will continue to determine public policy because of lifetime appointments to the federal court system, and the very intentional program of populating it with ideological clones. It’s sort of like a latter-day version of the Boys From Brazil. Only even more fun, because these nice young fellows have control of the world’s sole superpower.

The other great irony here emerges from the first. Americans love to believe that they are proud owners of the world’s greatest democracy. But the final arbiter of much policy making in the United States is the Supreme Court, not only the least democratic of the three branches of government, but in fact almost completely non-democratic at all. Consider the present case. Policy in this country is now being decided by five individuals clothed in black robes, meeting in secret, and offering whatever explanation or criteria they choose to offer (or not) to justify their decisions. They are chosen through a process which might be described, at best, as indirectly quasi-democratic in nature. They serve for life. They cannot be removed from office except by impeachment, which almost no one considers to be justified for the crime of possessing bad judicial politics. Or even – like Scalia or Thomas – horribly bad politics. You basically have to be caught with a bag of cash or a law clerk under your robes to be impeached, and probably neither of those would actually be sufficient. And, if you think that is bad, consider this. Changing the ‘five’ in the above scenario to just one would not be an inaccurate description of our current governing arrangement. Indeed, because of existing political configurations, there is quite arguably just one person – robed in black, serving for life, chosen through a non-democratic process, unanswerable to anyone, and almost completely untouchable – who sets policy in this country. His name is Anthony Kennedy and, just about every time it counts, he is very regressive.

All of which begs some important questions about the nature of America’s form of government as construed by the Constitution and two centuries of practice. Not that any change of this magnitude is imaginable (unless, of course, the Court were liberal and Vice President Dick Cheney decided to wave his magic and seemingly endlessly potent Constitutional wand and declare it nonexistent), but it is nevertheless worth wondering at this juncture, just what is the point of the Supreme Court?

Conservatives will accuse me of being a fair-weather friend to the Court. They are actually not correct in this accusation – in fact, I’ve been wondering about this for some time now, well before the judicial coup of the regressive right was brought to fruition this year. And, of course, their hypocrisy on this score (what? – conservative hypocrisy? – the mind fairly reels!) is far more potent, if not as obvious as it should be. For decades, faced with a liberal or moderate Court, the right has been screaming its many code words for enervating the institution in any way possible. The federalism or states’ rights ploy, for example, was meant purely to relocate authority to judicial fora more conducive to regressive victories.

The hysteria about ‘activist’ judges was meant to intimidate courts from modernizing backward policies in cases which came before them. The ‘respect for precedent’ rap was cut from the same cloth.

But now that the inmates have gained control of the asylum, you won ‘t be hearing any of those lines from the bonkers crowd anymore. Now that they own the judiciary, ‘judicial restraint’ is for sissies. (Which, by the way, is essentially what Scalia has been calling Roberts in a series of remarkable separate opinions on cases where they otherwise agree with each other on the outcome. If ever you needed an indicator of how far gone these cats are, the idea that John Roberts’ jurisprudence is insufficiently rabid to satisfy the mainstream of today’s conservative movement ought to send shivers up your spine.)

In any case, when I wonder aloud about the purpose of having a Supreme Court, it is not because my politics are now on the losing side of the Court’s majority, and my thoughts do not therefore represent a mirror image of their abandonment of the judicial restraint mantra now that they own the Court. Rather, it is a question of comparative politics and genuine constitutional engineering. As far as I can see, such a high court in a given polity could – and in our case, does – have two essential functions. One is chiefly appellate in nature. That is, the institution serves to supervise, correct and unify the application of garden variety rules of law in the practice of the lower courts. Thus, if the law of the land is that each defendant in a criminal case has the right to counsel, then there needs to be a place for an individual who believes he or she was denied that right to file an appeal. This is very basic jurisprudence – or even the administration of jurisprudence – and as such, I have no problem with a court designed to serve this function, as many do in other democracies, such as the Law Lords in the British system.

The second possible function of such a court is far more akin to actual lawmaking, or, minimally, law reversing. This capacity, which includes the power known as judicial review, makes the court an equal governing partner with the legislature, whether that is a parliament or Congress, allowing the judiciary to strike down duly enacted legislation for being unconstitutional or somehow otherwise unsuitable, according to the wisdom of the justices. This is a far more potent and robust power for any high court to possess, and most of them, in fact, do not. American democracy is rather unique in the substantial degree of legislative power vested in the courts. In most other democracies, parliament – the representative expression of the public’s political will – rules, almost or even completely unchallenged by any court. And, depending on one’s particular vision of democracy, that makes a lot of sense for reasons already discussed above. After all, if you’re going to call it a democracy, shouldn’t democratic institutions make policy, and non-democratic ones do something else?

I mostly agree with that philosophy, though there is one valid rationale I can see for allowing a non-democratic high court to possess such powers. And that is that democratic institutions can sometimes arguably be ‘too democratic’. How is that possible? Shouldn’t the will of the people be the fundamental law of the land? Yes and no. Suppose your country has as among its bedrock and constitutional principles the notions of freedom, equality and due process. Now suppose there is some out-group – blacks, Jews, gays, communists, whatever – who are in fact being subjected to a treatment that is in gross violation of these principles, but nevertheless very popular with the majority of the public. Who’s going to protect those minorities? Members of Congress? The president? Probably not, especially if they want to keep their jobs. But how about a court of jurists who are charged with acting in the name of defending just such ideas, and who are insulated from the public wrath their decisions would engender by virtue of their lifetime appointments?

Consider, for example, the case of Brown versus the Board, handed down in 1954. That was not an era that was, shall we say, particularly well known for its progressive racial attitudes in America. The controlling case to that point was Plessy versus Ferguson, which allowed for racial separation, as long as equality was maintained. Even if we leave aside the absurd contortions we have to twist ourselves into in order to find a way to describe the lot of black Americans then (or now) as remotely equal to that of whites, the Warren Court rightly figured out that separate would always be inherently unequal. Spot on they were, but to say that the Brown decision was unpopular would be a bit like describing Lebanon as unlucky. Let’s put it this way: My guess is that on any given day of any given year since 1789 no more than one out of ten Americans could name the Chief Justice of the United States Supreme Court. But after Brown, “Impeach Earl Warren” bumper stickers were commonly found in the South (and probably Boston too). I’d be pretty shocked if the Warren Court didn’t have a pretty decent prior sense of the fury their decision would precipitate. But they did it anyway, because it was the right thing to do, and because they could rest fairly well assured that neither Congress nor any president was going to sacrifice their political careers to get the job done, and thus they had to do it if it was to happen.

The Miranda or Gideon cases were similar in nature. Just as African Americans were an unloved out-group at the time, so of course, were accused criminals. Which member of Congress or executive branch official was going to go to bat for them, to make sure they got the fair legal process which was their due? Who was going to stand up for the completely just but unpopular principle of providing counsel to defendants, at taxpayer expense, or the idea of throwing out confessions given by arrestees who hadn’t been told they had the right to remain silent? If you were looking for a quicker way to commit political suicide, coming out in favor of pedophilia or Maoist revolution in the United States might have been more expeditious, but only just barely. Nobody was going to do this except those few folks insulated from the repercussions of making an unpopular but morally and Constitutionally necessary decision. And sometimes not even they would so dare – as the Court’s failure in the Korematsu case reminded interned Americans of Japanese descent during World War Two.

So, if a judiciary is going to be given such powers for purposes of protecting those who will otherwise be deprived of the life, liberty and happiness to which they are entitled, then I say, fine, let’s give them those powers. If not, however, it is a more than reasonable question to ask why they should possess that degree of authority. And, ‘just because they traditionally always have’ is really not a very decent answer. Apart from a few small matters like the tremendous inertia of tradition, the massive difficulty in making changes to the Constitution, and the complete indifference of most Americans to the issue, I would nevertheless argue that the philosophical burden for vesting these powers in the judiciary rests with those who would advocate for doing so, for the simple reason that such a choice is so profoundly anti-democratic – even when the Court is using such powers for the ‘right’ purposes. This concept is not lost on other democracies, by the way, where the American model is generally not employed. In Britain for example, Parliament is supreme. Period, full stop. No court or executive or monarch or any other actor can block the expression of the people’s will through their democratically chosen representatives sitting at Westminster. The only institution that can tell today’s parliament to stuff it is tomorrow’s parliament. That’s it. Meaning that the people, through their elected representatives, can legislate any policy they want. If you believe in democracy, that is arguably not only precisely how it should be, but perhaps the only way it can be.

So where does that leave us today? Well, Earl Warren is both literally and metaphorically long in his grave. With the occasional unexpected (by definition) exception, it has been a long time since the Supreme Court has acted as an agent of tolerance, principle and protection in America. And, as an echo of the previous epoch’s politics, the tendency will be to continue in that direction as the Robert’s Court and the rest of the federal judiciary reflect the regressive politics of the last decades, no matter that those ideas are well repudiated now.

To my mind, that is every reason to remove the power of judicial review from the courts. Maybe civics teachers across the land will feel compelled (perhaps, literally, by the same folks who compel them to teach creationist junk science) to tell their sixth-graders that the job of the courts is to ‘interpret’ the law. I can remember that notion seeming pretty weird to one sixth-grader I knew well back then (like, why couldn’t the lawmakers themselves interpret the laws they made?), and it strikes me as almost pure fiction today. You’d have to be a complete ninny to believe that what the federal appellate courts do in America today is not political, ideological or somehow above politics. I guess that’s why the reactionaries on the Court always vote together, taking the conservative side of any issue, and the non-regressives usually vote the other way, eh? I guess that’s why the regressive movement of the last several decades has made colonizing the courts job number one, at least since Roe versus Wade, huh? I don’t think so.

But nobody in America has the foggiest clue about such matters of constitutional engineering, and the ‘educational’ and political systems of the country have made sure that people are sufficiently dumbed down never to be likely to get there. So what we’re looking at in the coming decades is a replay of the residual reruns of the regressive seizure of power in the prior ones, like so much soap scum left ringing the bath tub days after its last use. This could well occur even should a very progressive Congress and president come to power, which is not as inconceivable as it might seem, thanks largely to the experience of the other alternative these last years. Imagine Congress pumping out bill after progressive bill, and the president happily signing those into law, only to have them repeatedly struck down by the Roberts (Scalia) Court. Wouldn’t that be fun?

We’ve actually been there before. This is more or less precisely what happened to Franklin Roosevelt and the Democratic Congress of the New Deal era. Trying to grapple with an economic catastrophe, they passed a flurry of popular legislation which was then discarded by the only non-democratic branch of the government, a Supreme Court that had been populated by conservatives of the Harding/Coolidge/Hoover school of pro-business Republican orthodoxy from that (and our) time. Roosevelt responded with a court-packing scheme that never made it through Congress, despite his personal popularity and the public support for his legislative rescue agenda. Still, many people argue, just the attempt was successful in moving at least one of the votes from the five-member majority into Roosevelt’s column, thus isolating the remaining conservative “Four Horsemen” in the minority and creating a new 5-4 majority, this one progressive, though. Perhaps Anthony Kennedy is destined to play this role in the coming decades, if we’re lucky.

If not, things could get more drastic. Such a president in such a predicament would not be the first to blow off a recalcitrant court. When he didn’t like the Supreme Court protecting Native American tribal lands from the incursions of state legislatures, Andrew Jackson famously responded to their ruling by exclaiming, “John Marshall has made his decision, now let him enforce it!” – knowing full well, of course, that that would be impossible. But such constitutional meltdowns – even for the right reasons – can come at some considerable cost, not least to public respect for the rule of law.

And all of that may be something close to a best case scenario, absent a Kennedy defection from the Dark Side. These cats have been waiting in the wings for this moment, anxiously and with ill humor, for a long, long time. Moreover, after this term, they’ve tasted blood. Civil rights is just about toast already. Campaign finance reform is gutted. Criminal justice jurisprudence is headed back to the days of the stockade and guillotine. Corporate power is rising to a level that might shock Andrew Carnegie.

And that’s just the beginning. Look out Roe. Look out civil liberties. Look out congressional oversight of the executive branch. Remember when the cops used to beat people in New York while laughing, “It’s Giuliani Time!”? Well, welcome to Scalia Time. It ain’t gonna be pretty, no matter how it goes down. The only question may be how bad it gets.

On the other hand, judicial regressivism is likely to be even less popular in America than has been its overtly political cousin, especially since the former will be following on the noxious heels of the latter. A Supreme Court which matches George Bush every step of the way in terms of both its bad politics and its obstinance could find itself facing some serious public wrath, particularly after a belly-full of eight years of the same from Bush.

We may well need to make our policy preferences strongly known to this ‘non-political’ branch of government so immersed in politics, and so political in its decision making.

After Gerry Ford proclaimed that “our long national nightmare is over”, he followed that famous lines with these words: “Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule.”

Methinks we may have yet another chance to test that proposition in the near future.

The Libby Commutation
Nicholas F. Benton
Wednesday, 04 July 2007

Maybe Bush’s outrageous commutation of Scooter Libby’s will help some folks recognize that this president and his cronies have more than normal self-interest or operative pragmatic scheming in mind.

The Libby case, as with so many others, is not about Libby or any particular incident. It’s not about respect for the “rule of law,” either. If you say it’s more about “who gets to make the law,” you’d be closer to the truth.

The oft-used term “neo-conservatives,” or “neo-cons,” is thrown around the identify the circles that helped lift this current administration to power, but the true spirit or meaning of the general term is not easily grasped. No, these are not just new conservatives, not just another Ronald Reagan or your daddy’s Moose lodge.

At the top, these people have a total overhaul of U.S. Constitutional government in mind. Bush and friends are the first administration that has achieved a level of power high enough to exhibit this. Their goal is the end of democracy as defined by the U.S. Constitution.

They came into office on the shoulders of the same forces, led by U.S. Supreme Court Justice Antonin Scalia and those under his sway on that bench who installed Bush as the president in December 2000.

Appropriately, it is a movement steeped in religious convictions, as religion is a domain that needs no respect for the secular U.S. Constitution.

In Scalia’s case, many, including myself, attending a dinner honoring a retiring George Mason University law professor in Arlington in January 2003, were shocked to hear him couch in Jesuit-steeped legaleze the core substance of his notion of law.

In so many words, he said the law is defined by who wins. If you win, you get to decide what is legal and what isn’t.

It’s a variant on “might makes right” and other tenants of “social Darwinism,” the ideology which, when unbridled in political practice, leads to all varieties of tyranny.

Since that night, I’ve been dismayed by the notion that such an ideology would be operative on the U.S. Supreme Court. That court is assigned with preserving the notion that U.S. law, and its defense of equal justice and democratic institutions, is rooted in the U.S. Constitution, not the most recent thug elected to a high place.

It has not been until Bush’s two most recent appointments to the Supreme Court that Scalia’s viewpoint has appeared to obtain the majority there.

In President Bush’s case, he comes from of a particularly unsavory ultra right-wing Protestant religious influence that combines its influence on controlling his self-destructive personal habits with its claims that God’s law supercedes man’s laws and that the true believer must be obedient to the former.

The likes of Dick Cheney and others, of course, don’t require the religious trappings on this notion. For them, Scalia is sufficient: You win, you rule.

But humans, being how they are, prefer promises of eternal bliss and threats of the opposite for misbehaving, to motivate their actions.

Bush adopted his brand of the “real thing,” religiously, in Texas. It was channeled through the funding arms of right-wing, California billionaire Howard Ahmanson, Jr., bringing the so-called Christian Reconstructionist movement of theologian R. J. Rushdoony directly to Gov. Bush’s door.

Ahmanson is an Orange County arch-conservative who not only drew the late Rushdoony to his breast, but has funded countless efforts at transforming mainstream Protestant Christian institutions into something in his image. This has included the effort to induce a schism in the Episcopal Church U.S.A.

Rushdoony’s core belief is that God is calling America to replace Constitutional law with Biblical law. That is, all the tenants in Leviticus, Deuteronomy and the others, including the literal stoning of gays and whores, are to become the law of the land.

Bush is constantly told that God is working through him. On the road to full Biblical rule, he must act without respect for the Constitution. He must wiretap, he must allow Guantanamo, he must permit Abu Ghraib, he must defend Cheney’s refusal to disclose, he must sanction leaks exposing covert CIA operations, he must stack the court system, all this and more with disdain and disregard for the Constitution.

For him, it’s not only because he can, but because God is telling him to.

As Predicted, A Hostile Takeover of the Supreme Court
David Sirota
Jul 13 2007

Back when George Bush was nominating people like John Roberts and Sam Alito to the Supreme Court, I wrote a series of posts (here’s one) wondering why Democrats and progressives weren’t focusing more on what these two right-wing nominees would do to basic economic policy. Now, with them on the court, we get an idea why I was so worried about this. Here’s an excerpt from Businessweek.

“Out of 15 cases in which the U.S. Chamber of Commerce filed friend-of-the-court briefs, presenting the views of its corporate members, the chamber won 13—the chamber’s highest winning percentage in its 30-year history. Indeed, the court’s 2006-07 term, drawing to a close this month, has been a banner year for business, with important victories in areas ranging from antitrust and banking to shareholder suits and punitive damages.”

And, oh by the way, if you think its just the conservative justices, think again:

“The court’s newest justices, Roberts and Samuel J. Alito Jr., have the business community’s stamp of approval. But, while some of the court’s business rulings this term were decided on 5-to-4 votes—notably a decision sharply confining the time in which workers must file pay discrimination claims—those kinds of narrow splits were not typical on business matters. In fact, 12 rulings in business cases were unanimous, and most others were decided by substantial majorities, underscoring that the shift in the court has more to do with the cases being selected than the leanings of particular justices. One of the court’s most liberal members, Ruth Bader Ginsburg, authored the court’s 8-1 opinion in Tellabs v. Makor, which raised the hurdle for plaintiffs to move forward with securities fraud lawsuits.”

Read the whole article - it shows the true scope of the hostile takeover of the Supreme Court.

Mister Roberts
by digby

Big Tent Democrat at Talk Left makes a nice point today in his post called The Invidiousness of Expert Broderism, about the detached nature of the discussion surrounding the Supreme Court term by liberals and moderates who backed the Lieberdem impulse to put John Roberts and Samuel Alito on the high court because they were … well, great guys. (They’d had beers with them!)

My personal feeling is that this court is going to practice a form of radical right wing judicial activism that will transform our country over the next generation. (Remember, everything the right accuses the left of doing is what they actually are doing.) Democrats will spend a major amount of time when they are in power trying to find legislative and executive remedies for the dramatic judicial tilt toward big business, fundamentalist religion and racist, discriminatory outcomes — which will have been made in service to the Republican party and its donors. (After Bush vs. Gore I think we can finally dispense with any notion that the justices are non-partisan.)But we knew that didn’t we, when the gang of 14 decided they needed to keep their powder dry for a rainy day?

Roberts is a particularly unctuous character, with his sunny smile and youthful energy, while he dishonestly passes off wingnut bumper stickers like “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” as judicial reasoning. (I can hardly wait for him to read his decision on gun rights where he says “guns don’t kill people, people kill people”)

Rick Perlstein nails him to the wall with this passionate post about Roberts’ other fatuous punchline: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.”

[...]

The decision last week said that counting — the mechanism that showed that school districts were simply refusing to adhere to the law — is now illegal. Neat, huh? And in perfect inverted GOPtalk, Roberts smugly claims that he’s actually advancing the cause of school integration. He’s doing his mentors proud.

It is clear that the major legacy of the Bush administration will be this court. But then, the man became president in the first place due to a blatantly partisan Supreme Court decision, so I suppose there’s some symmetry in that.

The Freedom to Warp Your Mind (and Fleece Your Pocket)
The Supreme Court and Mr. Peanut
PAT WILLIAMS
July 7 / 8, 2007

A minority of First Graders, but a majority of the Justices of our United States Supreme Court insist that Mr. Peanut is a real person.

In a splintered 5-4 decision, the Court has ruled that private corporations are people in the exercise of the free speech guarantees of the First Amendment of the Constitution of the United States. Although those guarantees were surely meant by our founders to assure the rights of free speech to real live people and not bloodless, inanimate business ventures–not huge multinational corporations–the court has ruled otherwise.

The Court’s latest decision determined that corporations may finance political television ads and they may do so in the days just prior to an election, a practice that had been denied by the McCain-Feingold campaign finance reform law. The high Court’s reasoning is that campaign dollars and speech are indivisible and to prohibit corporate campaign spending truncates a “person’s” right to expression. Really? A corporation and money have the same right as a person? Holy snap, crackle and pop!

This recent tortured violation of common sense is the latest blow of one first delivered by an earlier Court controlled by judges of the political Far Right. In an 1886 decision–Santa Clara v. Southern Pacific Railroad–the Supreme Court granted corporations the legal status of a “person.” That decision from the “Gilded Age” of money and centralized power was the precursor for the free speech finding of today’s Court.

The concept of Exxon and Wal-Mart, Halliburton and Enron as a person, enjoying the full protections of the First Amendment, stuns the senses. The direct equating of money with speech diminishes our respect for the majesty of unfettered spoken and written opinion. In America money is speech? That’s right. Love it or leave it.

Ever since the days of the moneyed colossus William Vanderbilt “The Public be Dammed” and J. P. Morgan “I owe the public nothing” our most powerful corporations have strategized about how to present their institutions as caring and folksy; “a good neighbor” carrying us safely through “the friendly skies” high above “the valley of the jolly Green Giant.” For more than a century companies as diverse as Jell-O to Enron have spent billions of dollars in advertising to convince Americans that we are “in good hands” while our children join the likes of Tony the Tiger and Toucan Sam for their early morning sugars and trans-fats masquerading as breakfast.

Corporations have strategically created cuddly, loving mascots such as Exxon’s Tiger, Pillsbury’s Dough Boy, the tire companies’ Michelin Man and Tobacco’s Joe Camel. They even created pretend people such as Ronald McDonald and Betty Crocker–all for the strategic and purposeful effort of eliciting sentimental imagery to convince Americans of their neighborly and benign intentions.

Yes, multinational corporations have created enormous gains in science, income, profit and development for Americans, and much of those gains have been accompanied by the high costs of deprivation, destruction and disease.

But, trust us “you are in good hands” and now, thanks to the Cheney-Bush Supreme Court, your friendly neighborhood corporations will exercise the power of money as speech in electing our candidates. The result will be more, and not fewer, negative political television ads and further blurring and warping of our political choices each election day.

Pat Williams served nine terms as a U.S. Representative from Montana. After his retirement, he returned to Montana and is teaching at The University of Montana where he also serves as a Senior Fellow at the Center for the Rocky Mountain West.

President Bush has a friend in the Supreme Court
Michael Doyle, McClatchy Newspapers
Fri, June 29, 2007

WASHINGTON — The Supreme Court smiled on President Bush and big business during its 2006-2007 term, which just ended, gratifying a White House beset by problems nearly everywhere else.

Reinforced by two conservative Bush appointees, the court sided with the administration’s position more than 80 percent of the time. Even one of the administration’s highest-profile losses reflected the White House’s innermost political sympathies.

“A lot of people have been observing that the administration has kind of had its way with this court,” said Washington attorney Maureen Mahoney, a Republican frequently identified as a potential Supreme Court nominee.

The White House won big policy victories, as when justices upheld late-term abortion ban, and scored key procedural wins, with the court blocking taxpayers from challenging Bush’s faith-based initiative. White House allies prevailed when the court sided with parents who oppose race-based school decisions.

The administration’s record was far from perfect, however.

In the year’s highest-profile environmental case, the court by a 5-4 margin declared that the Environmental Protection Agency has the authority to regulate greenhouse gases. And on Friday, in an even more surprising twist, at least five justices agreed to reverse a prior court ruling and hear an appeal from prisoners detained at Guantanamo Bay. That hearing will take place next fall.

Every Supreme Court term combines theatrics with technicalities. The decisions with the longest reach can take years to unfold or require a doctorate to comprehend. The cases with the most vivid facts may drift to the legal backwaters, or turn up elsewhere in surprising ways.

And even glittering won-loss records can conceal more complicated undercurrents. Over the past term, the court’s conservatives have clashed among themselves, and its dissenters have revealed some hard feelings.

“The majority is wrong,” fumed Justice Stephen Breyer, taking nearly 30 minutes to read a recent dissent from the bench. “It’s not often in law that so few have changed so much so quickly.”

The administration weighed in on some 46 cases this past term, all handled by Solicitor General Paul Clement. Some cases involved the government itself. Many others involved private cases on which the administration had a point of view. Thirty eight times, the administration’s view prevailed.

The Clinton administration, by contrast, sometimes lost as many as half of the Supreme Court cases on which it expressed views.

“The current administration may be more in tune with a majority of the Supreme Court than was the case during the previous administration,” said Washington legal aid attorney Barbara McDowell, who served eight years in the solicitor general’s office.

In truth, McDowell added, solicitor generals frequently have good batting averages with the court. They have considerable experience, pick their fights carefully and generally enjoy the court’s respect.

Still, the White House wasn’t the only big winner as Chief Justice John Roberts led a conservative if at times tenuous majority. Business interests likewise count the newly finished term a success. The Chamber of Commerce prevailed in 13 out of 16 cases on which it weighed in.

“We’ve been representing the business community before the Supreme Court for 30 years, and this is our strongest showing (ever),” crowed Robin Conrad, executive vice president of the National Chamber Litigation Center.

In some respects, the 2006-2007 term was a modest one for a court in its second year under Roberts’ leadership. Unlike the previous term, justices didn’t render big terrorism or national security decisions. The court also issued fewer decisions, 72, than it has in previous years.

Roberts, moreover, fell far short of his ambitious goal of unifying the court.

During his September 2005 confirmation hearing, Roberts told the Senate Judiciary Committee that “the chief justice has a particular obligation to try to achieve consensus” and declared that would “certainly be a priority for me.” Nonetheless, 24 out of the 72 cases this term were decided by 5-4 margins.

“There’s been more division in this court, (although) not on the business side,” noted Washington attorney Beth Brinkman, a Democrat who’s argued 21 cases before the high court.

More cases were decided by 5-4 margins than in any term over at least the past decade, according to figures compiled by the law firm Akin Gump Strauss Hauer & Feld. There also were notably fewer unanimous decisions than there were in previous years.

Consistently, Roberts joined with justices Antonin Scalia, Clarence Thomas Samuel Alito Jr. and Anthony Kennedy to form the majority. It was Kennedy, though, who really flexed his muscles.

With the departure of Justice Sandra Day O’Connor, Kennedy fully claimed the role of crucial swing vote this year. He was on the winning side in every one of the 24 cases decided by 5-4 margins.

Kennedy, moreover, periodically restrained what the Roberts’ majority would otherwise have accomplished. On Thursday, for instance, Kennedy joined with the slim conservative majority to strike down race-based student assignment policies in Louisville and Seattle.

The court sided with white families in ruling that the schools’ race-based decisions violated constitutional guarantees of equal protection.

But in a concurring opinion, Kennedy stressed that he wouldn’t go as far as Roberts in eliminating race in school policies. Kennedy’s contention that Roberts shows “an all-too unyielding insistence that race cannot be a factor” effectively limits the reach of the majority’s decision.

“Within the five-person conservative majority, there were fascinating internal splits,” said Stanford Law School professor Kathleen Sullivan.

It’s a tug-of-war: Kennedy pulling in one direction and Scalia and Thomas pulling in another.

Roberts, for instance, wrote the majority opinion concluding that a campaign finance law limiting certain pre-election ads violated the free-speech rights of Wisconsin Right to Life. The law blocks unions and corporations from directly financing certain ads within 60 days of a general election and 30 days of a primary.

The Roberts opinion will make it much easier for unions and corporations to run ads. He didn’t, however, strike down the campaign finance law itself.

Scalia and Thomas joined the majority, but insisted separately that Roberts was being disingenuous. It would be more honest, they said, for the court to overturn the law it otherwise was gutting.

“This faux judicial restraint is judicial obfuscation,” Scalia wrote, speaking of one of his ostensible ideological allies.

The campaign finance case itself was a tricky one for the Bush administration. Bush reluctantly signed the campaign finance law in 2002, opposed by many of the White House’s political allies. Nonetheless, the administration defended the law in court.

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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