Ever Wonder Why It’s So Hard To Get Progressive Traction?

5 to 4: The Republican Coup

By Judith Gayle | Political Waves

Last week I mentioned that, with a couple of notable exceptions, George Bush didn’t do much for his party. The exception we explored was the growing extremism Dubby fostered by ignoring fact in favor of conservative fancy and pushing ideology rather than responsible policy. There is, however, another accomplishment for which we might blame or thank him, depending on our party affiliation and our desire to live on into a new era or perish like the mastodon. The GOP has largely forgiven their lesser Bush a plethora of fiscal indiscretions and policy gaffes based on his appointment of two hard-core Federalist ideologues to life-terms on the Supreme Court of the United States, also known as SCOTUS.

Of the three branches of government, the judicial is the one to which we give the least attention, and we pay a staggering price for our ignorance. The slow erosion of our social norms follow judicial changes that we seldom notice, another example of the truism that all politics are personal and we all enjoy or suffer their consequences. We fancy ourselves a nation of laws, yet again and again we discover our laws slowly eroded and tarnished. For reasons beyond my ken, we seem shocked to find justice used as a political pawn.

If the legislative and executive branches form the body and brain of our government, then SCOTUS is the bones upon which everything else hangs. With the Constitution as its true north, SCOTUS is designed to be the tie-buster, issuing the final word for contentious cases that come up through the lower courts. Once a decision is made by SCOTUS, the only recourse is through congressional bills redefining the matter. And after taking the oath, a Supreme Court candidate becomes a high court judge for life. Abiding by no formal code of ethics, Supreme Court justices can only be removed from office by impeachment. Talk about yer job security!

We need to pick these people a little more carefully, don’t you think? Just imagine the power to shape not only the nation, but also the life of every citizen in it! If that seems a little overblown, remember the election that kicked off this new century: a narrowly won Al Gore presidency stolen by a SCOTUS 5:4 vote. The Republican cause was aided and abetted by a high court that should never have interfered, a court so nervous about its decision that the judges even called their ruling in Bush’s favor a one-time exception and not a precedent. In the ensuing years, Bush appointments created an even more radical judiciary. In the past decade of corporate influence and income disparity, the high court of these United States has become a political arm of the GOP, and that’s about as personal as it gets.

Take Roe vs.. Wade. It is, as we like to say, the law of the land, yet one of the two political parties responsible for lawmaking behaves as though it is not. The entirety of health care reform was held hostage to the question of funding abortion with public money. Those of us who would be glad to do so were shouted down by those who would not, despite the clear legality of that option. Now, every time we turn around, there is a new attack on choice, a moving target in the culture war that’s so dear to a GOP base flush with religious ardor. One can’t ignore the Republican DNA in bill after bill, passed at state level, making the difficult decision to terminate a pregnancy more hellish in its own right. Now some women must counsel before such a move, listen to the heartbeat of a fetus, glimpse it through ultrasound, be potentially prosecuted should we endanger its continuance — and this from the very demographic that demands less intrusion by big government. Many such local laws seek to set a precedent that will eventually be argued before a markedly conservative Supreme Court: this one, specifically, and this collection of justices in particular.

For some reason, this Supreme Court seems reluctant to get into culture issues like gay marriage. As it can select from a long list of petitions, the court thus far seems more interested in being a friend to corporations and business interests. Most recently, their 5 to 4 decision that the sexual discrimination suit brought against Wal-Mart by four individuals wasn’t specific enough to include the 1.6 million women who joined them was a blow to class action suits. The ruling seemed to reiterate an earlier decision on class action involving AT&T. Average citizens cannot afford their day in court unless they band together, but the court has thrown cold water on that possibility.

In order to understand the friendliness of this court toward big business, we need to look at the justices. In the appointments of the last decade, two candidates were highly partisan, two others not so obviously. When considering the talent pool, the first thing the nation should be looking for, besides a sharp mind, is deep humility and respect for the neutrality of the Constitution. That was the mask that John Roberts, Dubby’s pick to replace Chief Justice William Rehnquist, slapped on when he faced a doubting minority in Congress. Distancing himself from his corporate record and service to right-wing causes, Roberts swore that he would conduct the court with “modesty and humility.” He forgot to add, “on behalf of plutocrats everywhere.”

The Democrats took him at his word — recalling the last vestiges of an era when such appointments were secured with a gentleman’s agreement to behave both honorably and civilly — and passed him through the vetting process, as they did the next candidate, Sam Alito. Both are cultural-conservative Federalists who are intent on turning back the clock to less progressive times, when business was not encumbered by restrictions.

When President Obama sent up his appointments, Sonia Sotomayor and Elena Kagan, two moderately liberal women, the Republicans were not so kindly. Doing that mirror-speak thing they do so well — accusing their foe of the sins of which they themselves are most guilty — they scoured the candidates’ records for examples of judicial activism, a phrase calculated to incite their base. Judicial activism is shorthand for intent to change standing precedent, to make law rather than just interpret it. The women came under harsh judgment for their intent to interpret the Constitution as a “living document,” rather than the preferred fixed mandate that cannot flex to meet changing times.

This is the age-old issue of Federalism vs. Jeffersonian politics, still moving the nation back and forth like the clapper on a well-worn bell. Anthony Kennedy, replacing Sandra Day O’Conner as the swing vote, occasionally sides with the liberals, but most of the others come down firmly on the right. That makes five conservative Justices, each just a little more extreme than the next. On the far end of the spectrum, Scalia, in particular, describes himself as an “originalist,” who believes the Constitution cannot be embellished in any way. To him, it is a dead document, not a living one, but he insists that he has no interest in turning back earlier decisions; he’s simply interested in not making any further such “errors.”

Yet even Scalia looks over his shoulder at Clarence Thomas — a man who would be more at home in an earlier century if only his skin matched his biases — as extreme. According to an NPR interview, Scalia sees Thomas as far more willing to reverse past precedent. “I am a textualist. I am an originalist. I am not a nut,” he says, insisting that he doesn’t favor “undoing old rulings.” Not so fast, Scalia! According to Wikipedia, “Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.” Birds of a feather. They flock.

These are the people deciding the ultimate fate of our nation. Calls for Thomas to resign over recently-revealed special interests and his wife’s extreme political activism have heated up into a firestorm these last few weeks. The Thomases are favorites of the Tea Baggers, who approve of Ginni just as she approves of Glenn Beck and others intent on returning America to earlier glories. If you’d like to encourage Thomas — best remembered by many for his references to Long Dong Silver, pubic hair and Coke cans — to step down, sign the petition here. It will likely change nothing, given the man’s personal defiance of any opinion but his own, but I can think of no Justice so damnably deserving of replacement.

Meanwhile, Texas populist Jim Hightower has called for the impeachment of John Roberts, who is arguably the slickest of the conservative Justices. Reviewing the decisions favoring corporate America, Hightower complained, “‘Judicial activism’ is way too tame a phrase for what Chief Justice Roberts & Co did here. This was a coup — a plotted overthrow to enthrone corporate political interests.” With the sweeping influence of the Citizens United ruling, who can argue?

The last half of the 20th century boasted two powerful courts that set the tone for the social contract we’re reviewing, perhaps renewing, today. The Warren court (1953–1969) expanded civil liberties and granted the government broader flexibility, while the Rehnquist court (1986–2005) expanded the Federalist view and limited the reach of government. The Roberts court is considerably more conservative than the one it replaced. A recent article in The Economist explained this nicely:

The court’s balance shifted in 2006, after George W. Bush picked John Roberts and Sam Alito (two conservatives) to replace William Rehnquist (a conservative) and Sandra Day O’Connor (a centrist). Since then, the kind of cases that the US Chamber of Commerce supports have been more likely to succeed. During 1994-2005, some 56% of the cases supported by the chamber and considered by the court succeeded; the success rate during 2006-10 was 68%. In 2009-10 the side supported by the chamber won in 13 of 16 cases, five of those by the slimmest of majorities (5-4).

A study by Lee Epstein, William Landes and Richard Posner, entitled “Is the Roberts Court Pro-Business?”, drew similar conclusions. It found that the Supreme Court ruled in a pro-business fashion in 29% of cases under Chief Justice Earl Warren (who served from 1953 to 1969). Under Warren Burger (1969-86) the figure was 47%. Between 1986 and 2005, under Chief Justice Rehnquist, it was 51%. Under Chief Justice Roberts it has risen to 61%.

In recent memory, then, we’ve had examples of two different kinds of courts and their influence on our social contract. It can’t be coincidence that the economy has tanked, the military industrial complex has inflated like a hot-air balloon, and civil liberties are going the way of the dodo under a court more interested in corporations than in people. SCOTUS is both reflection and cause of our current problems, reinforcing itself with every decision from age discrimination to forced arbitration. In a time when very few of us trust our wellbeing to government institutions, the Supreme Court of the United States proves, decision after decision, that our instincts are correct — it is not our friend and the Constitution it serves is, indeed, dead as a doornail.

Back when our Dubby was King, Christocrat Pat Robertson directed his faithful to pray that liberal justices would croak. While I don’t want to suggest the Robertson solution to our current problem, perhaps we could visualize some of them retiring to find new interests. I could see Clarence teaching at Glenn Beck University, for instance, and I’ll bet British Petroleum would have a spot for enterprising young men like John and Sam. I’d be happy with them anywhere but where they are, because, clearly, getting traction on progressive issues is all the harder when the vote remains 5 to 4.