Supremely Speaking

By Judith Gayle | Political Waves

It’s been Supremes this, Supremes that, all week long. Well, except for non-stop reports on soccer, a sport which righty pundit Ann Coulter declared un-American. There is evidently a sports footnote included in the Patriot’s Handbook, which one can read only if one knows the secret handshake.

Coulter takes no discomfort insinuating that civilization-at-large has Some Nerve calling the international event in question the “World Cup,” when the highly exceptional US of A has so little interest in it. I suppose that the approximately 25 percent of American citizens who know the secret handshake agree with her.

The Supreme Court is like a huge balloon filled with explosively hot and often toxic gas, traditionally leaking its load just before session’s end by releasing long awaited legal decisions like sky rockets — or hand grenades, depending on which side of the wrangle you’re on. This week we’ve received a series of rulings in hotly contested explosions or happily celebrated fireworks, based on one’s philosophical leanings. The Hobby Lobby decision, saved back as the judicial climax of the season, is to be announced on Monday.

Early in the week, the Supreme Court gave civil rights an unexpected win by unanimously affirming Fourth Amendment protections of privacy, making it illegal to search a person’s cell phone without first obtaining a warrant. This decision is based upon the enormous amount of personal information one can store in such a device, which should a) send up privacy flags for all of us who carry one, and b) point an accusing finger at the NSA for gobbling up as much data as it has capacity to hold without said warrant.

The can of worms representing modern technology and 21st century culture is not just spilled in this decision, but those wrigglers are crawling faster than the attempt to round them all up. Although progressives can applaud this ruling in terms of privacy rights, the conservatives came by their decision by wading ankle-deep in 18th-century sensibilities with their  embrace of originalism. As Robert Scheer tells us:

What is truly radical about the court’s unanimous endorsement of Roberts’ opinion is that it asserts the primacy of privacy in the survival of the American political experiment in representative governance. Responding to the Obama administration’s suggestion that law enforcement agencies “develop protocols to address” privacy concerns raised by the vast amounts of private data stored on cloud computers, Roberts responded, “probably a good idea, but the founders did not fight a revolution to gain the right to government agency protocols.”

Presumably they also didn’t fight the revolution to transfer their rights to FISA courts whose judges Roberts appoints. Perhaps he trusts his own motives in such matters but the basic message of the Constitution is to fundamentally mistrust those in power.

Scalia and Thomas are strict originalists, at odds with the notion that the Constitution is a living document. They look to the original text as inflexible. This begs the question what, if any, basic understanding of constitutional law does one need to embrace in order to be a true and fair arbiter of American jurisprudence at this point in history? Obviously, the problem with this process is that those in authority interpret from their own point of view, and if their personal druthers are as conflicted as the politics of the day — and they are — the court ends up arguing tits and tats, similar to the rabbinical conundrum about how many angels can dance on the end of a pin. On the other hand, that debate is just that, a debate, with no laws issued on the other side of the exercise.

The Roberts Court — all lawyers, which is neither a prerequisite for sitting on the bench nor, in decades past, the life experience favored in nominees — is playing with all the marbles. And although the Constitution mistrusts power, members of the Supreme Court seem determined to wield it, and in so doing, change the intent of the founders to reflect their own likeness. Although I’ve not heard any of the justices speak to this issue, I suppose the hypocrisy of that doesn’t keep them awake at night. In fact, I’m pretty sure at least four of them sleep like babies.

And speaking of babies — or what the pro-life community insists are cute, cuddly, already viable life forms — in another unanimous decision, the Supremes eliminated the 35-foot safe zone that had previously been established around women’s health centers offering abortion, designed to keep aggressive protestors at bay. The original buffer zones were approved because of the violence attending such protests, and a level of hysteria that has become infamous in the annals of protest history, creating murders and bombings.

I can only assume that our mix of Supremes must never have experienced the threat of a wave of angry humanity coming at them during a vulnerable period in their lives. The case,  McCullen v. Coakley, was brought by Eleanor McCullen, who has been described as an anti-abortion “sidewalk counselor.” According to Mother Jones, “The court agreed that buffer zones impeded the rights of McCullen and others who wish to “engage in personal, caring, consensual conver­sations with women about various alternatives.”

Got that, citizen? “Personal, caring, consensual,” because in states that legally require you to jump through demeaning and even cruel hoops, in some instances even making it necessary to go to another state to exercise your constitutional right to abortion, you may not have HEARD all the alternatives available to you. And, having gone through so much angst and misery to get what you need, being faced with a “grandmotherly” woman carrying a “Baby Murderer” sign and spouting religious rhetoric is just exactly what the moment calls for! Pffffft!

I had several initial thoughts when I heard this ruling. First was my own intense gratitude and relief that no one showed up at my caregiver’s office, a regional magnet for pro-life protests, on the day I went, years ago. The next thought I had was how this had been deemed reasonable for the average citizen to endure while political figures had the ability to be protected from such blatant “free speech” by police, who rounded up protesters and secured them blocks away from political activity. I also thought about the Supremes themselves, not just camera-shy in terms of what they say and do in session, but protected by a virtually impenetrable barrier of security. Well, I’ve already used the word hypocrisy today. No need to be redundant.

Then I remembered the high court’s decision on the repugnant activities of the Westboro Baptist Church, finding that they have a right to protest at funerals in an 8-1 decision. Ironically, the one dissenting vote was that of Sam Alito. According to Wikipedia:

Justice Samuel Alito was the lone dissenting justice in this case, beginning his dissent with, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” He concluded, “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”

In comparing that case to McCullen v. Coakley, I can only conclude that women who visit clinics to terminate pregnancies are NOT “innocent victims” in Alito’s opinion. And that brings another mental picture to mind, the first twenty minutes or so of the movie Philomena, a true story showing the brutal and judgmental punishments visited by the Catholic church upon Irish girls who got pregnant out of wedlock, mid-20th century. The movie made me angry. So does this judgment, and I can’t help but think that pro-life advocates will cluster at the few remaining clinics like sharks smelling blood in the water.

In writing the opinion, the Chief Justice had this to say:

[The] petition­ers are not protestors; they seek not merely to express their opposition to abortion,” but to counsel women. “It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vocifer­ous opponents of abortion, then the buffer zones have effectively sti­fled petitioners’ message.”

I wonder if Roberts holds the same good opinion of the rights of the political “counselors” who held seminars at Zuccotti Park? Somehow I think not. Still, the way in which regular citizens have effectively dealt with the Westboro protests at gravesites gives some hints about how to deal with over-aggressive “sidewalk counselors.” I suspect it will principally be the women’s groups that keep an eye on this. If the pro-lifers get too aggressive, groups of women acting as body guards is a likely next step toward protecting patients from being harassed for their choices.

There were other rockets fired off from the High Court this week. In a very narrow decision, the High Court rebuked Obama for bypassing congressional obstruction to appoint members to the National Labor Relations Board, which had limped along half-staffed for many months. The President made those appointments during a three-day recess when the Pubs left behind staffers to briefly gavel in and out, in what is known as a pro forma session. No work gets done, nor is any intended. This strategy is used to prevent such appointments, but Obama defied it. The court found that unconstitutional.

This is a hit to presidential authority, just as Obama is regularly stepping outside the system to try to accomplish progressive goals. Harry Reid’s adjustment to the number of votes required for appointments — 51 votes instead of 60 — will compensate for the time being, but if the Senate turns Red in November, Pubs will likely return the vote count to 60 and prevent Obama from filling any job slots at all. With the level of acrimony in the Capital today, it’s likely that pro forma sessions will be the norm from now on.

Meanwhile, we await decisions on Hobby Lobby and Harris v. Quinn, a worrisome attack on unions that, worst case, could create the entire nation as a right-to-work zone. Between the religion of big business and the dogma of fundamental religion, these two cases are an appropriate final volley for the fireworks that is SCOTUS 2014. I like to think the Supreme Court of the United States of America would understand that favoring the tenets of any particular religious conviction over the collective needs of a secular nation is not what the founders had in mind, but given the tendency to rewrite history, it’s hard to say exactly what five conservative Catholics think. Not so hard, I’m afraid, to discern what they will decide.

Although I’m not surprised at most of these decisions, I am surprised at some of the votes. The various players seem to be digging deep with these opinions; they’re not just dialing it in, and I appreciate that level of introspection. On the other hand, I’m still struck with how cavalierly we position these people — cloistered by their very definition as elite and absolute arbiters of legality — to make decisions for us all, and for a lifetime, leaving amendment as our only recourse.

The future of the court depends very much on who goes and who stays, who appoints and who votes. These days it’s an uphill slog to get the progressives in place to align court decisions with an increasingly liberal population, but we simply must be attentive to this if we are to avoid Elizabeth Warren’s warning, “You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of big business.” Sadly, I think we’re there already.

What we have counted on as a stand-alone entity, the third pillar of government, the Judiciary, is not just shaky, but cracked. We can say the same about the Legislative and the Executive branches, can’t we? Obama has to go outside the system to further his agenda, Boehner is going to sue him for not furthering his, and never the twain shall meet. This seems to be that juncture where religion, political party and corporate interest have become a conglomerate, the whole larger than the sum of its parts. I believe that’s also the very definition of fascism, is it not?

We stand on the brink of changes, the ones we knew were coming, the ones we were aware we’d be responsible for playing a part in. We’re in the thick of it, and now is not the time to lose heart, even with SCOTUS fireworks going off above our heads. Between the letter of the law and the spirit of the law, the latter always wins eventually.

It’s up to us to live that spirit as best we can, to be examples of the very process we intend to reestablish as the American template of liberty and justice for all. Some think that America comprises those three aforementioned columns of power, faltering though they may be. Me? I think America comprises us: everyday citizens, converging to envision a brave and creative future, our nation renewed and revised. Teddy Kennedy passed the torch before he left us, giving us a mantra to begin each day of that journey. “The work begins anew. The hope rises again. And the dream lives on.”