Chief Justice John Roberts’s astonishing claim in the Supreme Court’s final ruling of the term, that he is “faithful to the heritage” of Brown v. Board of Education–while explicitly invalidating desegregation programs based on race–shows not just how far the Court has swung to the right but the profound corruption of ideas and language that motivate the Court’s activist, conservative bloc.
Indeed, the entire final week of the Supreme Court term amounted to a grudge match on some of the right’s longest-held policy grievances. Antitrust and New Deal-style business regulation? Strike down the nearly century-old ban on manufacturers fixing minimum prices! Free speech? Let school principals suspend a student for off-campus anti-drug satire–and along the way undo student free-speech rights granted during the Vietnam War! Racial discrimination? Ban race-based remedies for race-based segregation!
As the last week’s first decisions came down–on the student speech case, Morse v. Frederick (a k a the “Bong Hits 4 Jesus” case), and on the campaign finance case–it was tempting to see the Court’s conservatives as locked in contradiction, divided over the principles of free speech. How can the Court on the one hand adopt the view that the First Amendment prohibits McCain-Feingold’s limitations on barely masked campaign ads, while on the other hand allow a principal to punish a student for a whacky banner unfurled during an Olympic Torch run?
But those two decisions, seemingly at odds, have one thing in common: Far from being paragons of judicial restraint, the Supreme Court’s majority actively sided with the interests of power. In Morse v. Frederick, as Justice Stevens noted in his dissent, the majority seemed intent on reversing Tinker v. Des Moines, the landmark free-speech case that gave students the right to protest the Vietnam War by wearing armbands to school. “Carving out pro-drug speech for uniquely harsh treatment,” Stevens acerbically noted, “finds no support in our case law and is inimical to the values protected by the First Amendment.”
As for campaign finance, labor unions may be cheering, for now, their new freedom to support candidates with advertising up until election day, but there is no doubt that corporate interests have greater resources and will use this new platform to exert their voices in unprecedented ways. Far from being an expansive interpretation of free speech, it amounts to a constricted view of the First Amendment, turning on its head the Framers’ explicit “original intent” to insure access of all to the arena of political debate.
And what about the Louisville and Seattle desegregation cases? There is nothing new, after all, about the Supreme Court undermining Brown. That has been going on for a generation, and by the fortieth anniversary of Brown in 1994, it was already clear that the Supreme Court’s role as an engine of desegregation was over. Resegregation has been going on for a generation, largely beyond judicial reach. So too have debates whether to reinvent integration in economic class terms.
Indeed, the precise impact of the Court’s ruling on the Seattle and Louisville cases remains unclear. Seattle, with a proud municipal commitment to ethnic and racial diversity, is already talking about “race-conscious” but not racially determined measures that might meet the Court’s new standards. Justice Anthony Kennedy gave Roberts his majority, but on the other hand Kennedy wrote what may turn out to be a poison-pill concurrence. Taking sharp issue with Roberts’s comprehensive dismissal of race-based remedies, Kennedy called the Chief Justice “profoundly mistaken” in his view that “state and local school authorities must accept the status quo of racial isolation in schools.”
What is new is the Roberts Court’s comprehensive and direct assault on Brown’s insistence that race-conscious discrimination requires race-conscious remedies. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” wrote Roberts in an Alice-in-Wonderland formulation that provoked a rare emotional rebuke from the usually Olympian Justice Breyer: “It is not often in the law that so few have so quickly changed so much.”
What has changed, Justice Breyer seems to be saying, is the Supreme Court itself. What is so evident in all this week’s cases is an almost gleeful judicial activism aimed not at any particular policy but at the basic configuration of power in this country. Antitrust means antiregulation, free speech means muzzling student protest, desegregation means maintaining segregation. That is the meaning of this week’s rulings, and that–it is clear–is the meaning of the Roberts Court.
Bruce Shapiro’s most recent book is Shaking the Foundations: 200 Years of Investigative Journalism in America (Nation Books). He is executive director of the Dart Center for Journalism and Trauma.
© 2007 The Nation
I do not think ethnicity should be a factor in determining who goes to school and who does not. ALL people should have the right to go to school if he wants.
It’s horrible to think that we are probably stuck with this court for years to come. And now the Supreme Court has agreed to hear arguments on the legal rights of “enemy combatants.” I am really afraid of what this portends, not just for the victims of Bush’s nebulous and eternal holy “War on Terror,” but for all of us who actively dissent from what is happening to this country.
CrackerJack: Good points that hardly can be argued. Just as we see Orwellian terminology turning things around, the word “activist” implies action which normally is associated with moving FORWARD. I would say these are re-activist judges who wish to turn the clock back effectively making a mockery of those battles of blood, sweat and tear that forged progressive ideals and solidified their ethos into law. I despise this court, see its claim to SUPREME JUSTICE about as viable as our “intelligence” department under Rumsfeld-Cheney as demonstrating anything remotely fitting that designation.
What disturbs me most, although its roots have been volleyed around in many postings on commondreams, is WHY the democrats didn’t put up a better barrier to these creeps (their pro-business, authoritarian, kiss ass to unitary executive promptings well known in advance) being placed in the highest court of the land. Present American history, a tale told by idiots, full of sound and fury… yet to be seen what it eventually signifies.
Siouxrose, You are so right! The Democrats really failed us here, even more than usual, by not blocking Roberts’ nomination. Believe me, abortion will be recriminalized next year.
I remember listening to the Roberts hearings, interspersed with the coverage of Hurricane Katrina coverage, and wondering what I felt worse about. I thought at the time that eventually the horrible disaster in the Southeast would pass, the bodies would be counted, rebuilding would take place. The Court, on the other hand, would be with us for years to come.
Shameful to think that in a supoosed government of the people five men are making decisions which destroy our liberties. Actually, since every decision is 5-4, it’s only one guy killing our Republic - I’ll blame Thomas, as he never votes differently from Scalia, Reagan’s kiss of death for democracy. How can nine lawyers, supposedly all following the same Constitution and the same precedents, always wind up splitting 5 to 4? Is the Constitution and legal precedent that difficult to construe?
Roberts was a tough one to buck - Cheney pulled Georgie Boy’s fat out the fire with that one, as the joke nominee Miers would never have flown. Roberts, with his tiny legal resume, didn’t have much to analyze or criticize. Alito was the one that should have been filibustered; the Dems could have held out for a decent woman to replace O’Connor, or at least a man without the baggage of Alito. Interesting how evangelicals like Bush consider Catholics satan-worshippers until their guaranteed anti-abortion stances prove useful. I curse the events that prevented Clinton from getting a single nominee in eight years, while Chimpy got two in five! I find myself in the position of Jerry Falwell, praying for the poison that infects their minds to somehow prove fatal to their bodies.
Toast our stolen Democracy and tattered Constitution heartily on July 4 - after 231 years, the Republic is dead - Long live the USA!
“Shameful to think that in a supoosed government of the people five men are making decisions which destroy our liberties.”
Yeah, next thing you know, courts will be legalizing abortion and mandating gay marriage without ANY input from the citizens.
wcdevins, Clinton got two nominees. Ruth Bader Ginsburg and Stephen Breyer.
The day the Supreme Court illegally stopped the vote counting in Florida, and appointed George Bush as President of the United States, it set off a chain reaction of crime which continues and will continue to subvert Democracy for years into our future. According to the government controlled media, Americans have no recourse to remedy this chain reaction of crime, and will just have to suck it up.
Forget that! Any action that begins with a crime makes all subsequent illegal actions null and void, which means the American people are not bound by corrupt Supreme Court decisions whatsoever. We do have recourse, it’s called Impeachment. Every Supreme Court Justice who voted to stop the vote counting in Florida, and appoint George Bush as President of the United States, should be Impeached.
The subsequent innumerable national and international crimes perpetrated by the Almighty Republican Establishment following the appointment of George W. Bush have corrupted our entire political system. Corruption breeds corruption, and spreads like wildfire. Stop the chain reaction of crime, and put out the wildfire before it consumes our country.
We have rights guaranteed by the Constitution and no gang of criminals can deprive us of our rights, no matter how many illegal laws they pass. Our Constitution is the Supreme Law, a triumph much like the New Testament. Corrupt leaders desecrate both.
.
kathyodat - thanks for the correction - I black out so much of the Clinton years…I guess I feel better. (Sigh.)
Powerslave answers my quote:“Shameful to think that in a supoosed government of the people five men are making decisions which destroy our liberties.”
with: “Yeah, next thing you know, courts will be legalizing abortion and mandating gay marriage without ANY input from the citizens.”
You changed the subject and set up straw men, the usual right-wing tactic. I said the court is destroying our liberties - like freedom of choice and freedom from discrimination and pursuit of happiness. Your argument is for less liberty, not more. Democracy does not mean imposing the will of the majority on the minority - that’s totalitarianism.
Really, powerslave,”mandating” gay marriage? How homophobic are you?
Kathy, I’m so dumb, ignorant. I thought Any democrat would be alright, just for the reason of who is going to sit on the next empty bench in the Supreme Court. Hit me in the face.___ I’m sorry.
Seeing as how this decision was a result of two recent conservative Bush appointees to the Supreme Court, I believe the Republicans have lost any hope of gaining black and hispanic votes in 2008. How could any person of color vote for a party with such little respect for the race issue?
Ah, OK. Good, Since mandating liberties is the job of the courts (not interpreting the constitution…), wdcevins you must be especially pleased with the DC Court of Appeals overturning of the District of Columbia’s gun prohibition. Right??
Cheney & Bush must be impeached as a prelude to impeaching Roberts & Alito.
We should immediately stop groaning that we are “stuck with them” for years to come. They were installed by lawless rulers, and they are lawless hacks put in place to continue to repeal human rights.
They must & shall be removed from office, and it will simply require the political courage of the younger people who will not accept corpo-theocratic thugs to dictate law.
What a bunch of cheap stooges; they could’ve been easily routed by anyone with sufficient wit & moxie, but not by the Democratic Lickspittle Council.
Off the mark again, powerslave - individual rights and weak government at the expense of the common good is a libertarian point of view, not a progressive one. Progressives don’t need a “one size fits all” approach to reality - too biblical, don’t you know. Each problem requires its own unique analysis, not right-wing sound bite solutions. When your individual “liberties” affect the public good the courts should rule against them. Overturning gun restrictions is just another example of courts, like other politicians, bought and paid for by special interests. You want a city where there’s no gun control, go to Baghdad and tell me how great the “freedom” to bear arms is.
No answer on the depth of your homophobia yet, I notice.
While these rulings are disgusting, dishonest and dangerous — they are not as dangerous as the GOP Supreme Courts have been in appointing their president and probably protecting their president should we move to demand records.
In other words, the newly fascist Supreme Court will now prevent us from protecting ourselves against fascist government.
Not unlike, btw, what Hitler did with the Nuremberg Judges/Courts!!!