Talking Points: The Court Lurches Right
June 29, 2007
Yesterday's 5-4 decision by the Supreme Court
in a landmark racial
desegregation case, which instructed local authorities
"that they cannot take modest steps to
bring public school students of different races together," marked a fitting conclusion to the first
full term of President Bush's two Supreme Court
appointees, Chief Justice John Roberts and Justice Samuel Alito. Reading his
dissent from yesterday's decision aloud in the courtroom, Justice Stephen Breyer
aptly described the Court's sharp
rightward slide. "It is not often in the law that
so
few have so quickly changed so much," he said.
The majority opinion, authored by Roberts, served as a microcosm for the traits
that have quickly come to define the Court: an alarming
lack of respect for precedent, irreverence for the democratic process, and
disregard for constitutional history. Early in his first term, Roberts publicly
proclaimed his desire to seek greater
consensus, but his "fractious" Court has produced a "higher
share of 5-4 decisions than any term in the last
decade." He has forced Justice Ruth Bader Ginsberg to undertake rare readings of
"powerful
dissents from the bench," a sign of the concern that
marks the new divisive era on the Court.
- The Roberts court has shifted dramatically to the right in the first full term of Bush's appointees. The newly-emboldened conservative wing of the Court has chosen cases on appeal through which it could implement its agenda. When Justice Sandra Day O'Connor was still on the Court, the justices denied review to a racial desegregation school program in Massachusetts. But in June of last year, "the court, reconfigured by the additions of Roberts and Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear" the school desegregation appeals, even though there was no disagreement in the lower courts on the validity of such programs. Slowly, legal and political scholars are taking notice of the Court's new activism. Norm Ornstein of the American Enterprise Institute said the Supreme Court's decision this week in a campaign finance reform case demonstrated "not a careful, conservative deference to Congress" but instead "a willingness by Roberts to toss aside Congress' conclusions to fit his own ideological predispositions."
- Roberts and Alito have broken their pledges not to impose their own priorities and beliefs on the Court. When Bush nominated Roberts
and Alito, he argued they deserved bipartisan support because they would
"interpret
the Constitution and the laws faithfully and fairly, to
protect the constitutional rights of all Americans," and they would not "impose
their preferences or priorities on the people." Roberts went before Congress and
testified that he had "no agenda." He added, "Saying a judge is
result-oriented...[is] about the worst thing you can
say, because what you're saying is you don't apply the law." For his part,
Alito said he believed "the judiciary has to [interpret broad principles of the
Constitution] in a
neutral fashion. I think judges have to be wary about
substituting their own preferences, their own policy judgments for those that
are in the Constitution." (Read more of their false promises here.) Duke University law professor Erwin Chemerinsky writes today
that "the testimony given by John Roberts and Samuel Alito at their confirmation
hearings just months earlier was a
lot of baloney." The most devastating change
on the Court has been the ideological shift that came with Alito's replacement
of O'Connor. "That
switch almost certainly changed the outcome of many of this year's most
important decisions, with the following results: making
it much more difficult for women, minorities, and older workers to challenge
employment discrimination (Ledbetter);
limiting Congress's power to keep corporate money out of federal campaigns
(Wisconsin Right to Life); cutting back
on protections for reproductive freedom (Carhart); slamming the courthouse door on
people who make technical mistakes (Bowles); cutting back on protections for
people facing capital punishment by, among other things, allowing imposition of
the death penalty on defendants deprived of even minimally adequate
representation (Landrigan, Ayers,
Uttecht); and making it impossible to challenge the Bush administration
when it uses public funds to promote favored religions (Hein)."
- The decisions handed down this week point to a court that could veer even further right if another space opened up during the Bush administration. As much as the Court has lurched to the right in the past two terms, the results could get worse if another Court opening were to occur during Bush's remaining days in office. The oldest justices are John Paul Stevens and Ginsburg, members of the progressive bloc. Among the issues at stake in the future are: a woman's right to choose; the environment; voting rights; congressional power; free speech and the First Amendment; and the protection of fundamental rights and liberties. O'Connor was a key vote on many of these issues, and the new Court could soon have these protections in its crosshairs. Washington Post columnist E.J. Dionne writes, "If another conservative replaces a member of the Court's moderate-to-liberal bloc, the country will be set on a conservative course for the next decade or more, locking in today's politics at the very moment when the electorate is running out of patience with the right."
