I lost what was left of my naiveté about the equal justice ideal of the Supreme Court with their decision in Bush v. Gore to select George W. Bush president by suspending Florida’s vote recount in 2000. That political overreach by the increasingly activist right-wing majority, interfering in a state’s right to count its own votes, was so radical that in the decision itself they forbid it to ever be cited in the future as a precedent.
Harvard Law Professor, Alan Dershowitz concluded: “[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.” (Supreme Injustice: How the High Court Hijacked Election 2000)
I should have known. I’d read Howard Zinn’s A People’s History of the United States where he traces the essentially conservative and pro-business history of the Court. Even in the 19th century, Zinn documents: “the Supreme Court, despite its look of somber, black-robed fairness, was doing its bit for the ruling elite…. How could it be neutral between rich and poor when its members were often former wealthy lawyers, and almost always came from the upper class?”
With “W’s” addition of ultra-conservative favorites Roberts and Alito, the right-wing justices became more radically activist to ensure that businesses had increasing power over individual citizens. All their carefully scripted talk in Senate confirmation hearings about following precedent and being “umpires,” not legislating from the bench, was no better than today’s right-wing political strategy that lying is okay if it promotes their ideology.
Decision after decision of the Roberts Court has eroded individual rights and increased the power of corporations and the police state. Eric Segall, professor of constitutional law at Georgia State University, in Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges goes so far as to argue that the Court, unbound by any court above it, set free by the vagueness of constitutional text, and uninhibited through the gift of life tenure, is operating like a freewheeling political "veto council" and not like any court that we would recognize as doing judicial work.
The activism of these right-wing justices was blatant in the 2010 decision of Citizens United v. Federal Election Commission. So intent were these justices on changing the political power in the country that they forced the case into doing so.
On June 29, 2009, in order to decide not on what was being argued by both sides but what they wanted to change in American society to benefit the interests of big business, the justices issued an order directing both sides to actually come back and reargue the case months later, saying they were really interested in whether they could overrule precedents that restricted corporate contributions to political campaigns. As Justice Stevens pointed out in his dissent, the Court addressed a question not raised by the litigants, and the majority "changed the case to give themselves an opportunity to change the law."
Even former Republican-appointed justice Sandra Day O’Connor questioned the decision. Prophetically, she warned: "In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."
It was little surprise then that during the Court’s April hearings on challenges to the Patient Protection and Affordable Care Act, Justice Scalia, for example, parroted tea-party talking points about the government forcing broccoli on everyone. Carried away with teaparty Republican propaganda, Scalia criticized “the Cornhusker Compromise” proposal in congressional discussions even though that never made it into the Act actually before the Court.
As if no facts matter at all, since he already knew what his opinion should be, Scalia even complained that he shouldn’t be bothered with reading the actual bill that, aping the teaparty Republicans again, was too long. “You really want us to go through these 2,700 pages?” The questioning also made it clear that Roberts hadn’t read it.
Working its way toward this Court is Perry v. Schwarzenegger, the challenge related to Proposition 8 in California. Proposition 8 adds a new provision to the California Constitution that provides that “only marriage between a man and a woman is valid or recognized in California.”
On August 4, 2010, US District Court Judge Vaughn R. Walker overturned Prop 8 as a violation of the Equal Protection and Due Process clauses of the U.S. Constitution. On February 7, 2012 a three-judge panel of the Ninth Circuit Court of Appeals consisting of a conservative, a liberal, and a moderate judge agreed with Walker’s decision 2-1.
On February 21, Prop 8 supporters appealed the case to the full Ninth Circuit Court. If the Circuit Court decides to review the case, the decision could take a year or more before it heads to the Supreme Court.
Because this Supreme Court is so motivated by ideology, I am hoping this takes its time. I can’t trust this Court to do the legally right thing.
What will really matter is the political climate we the people create around this Court. The longer the process takes and the more lower judges that rule in favor of marriage equality, the more likely it is that this Court will too.
Time will give supporters of marriage equality the necessary opportunity to further change public opinion. If the case reaches this Court before Justice Kennedy, at least, sees the handwriting on the wall, it will be a long time before a negative decision will ever be overturned.
With the Supreme Court’s decision so final, with four ideologues who get their orders from the right-wing dominating Court decisions for decades, and with the other options being constitutional amendments or waiting until those four die, advocates need both the time and further efforts of all supporters to guarantee equal justice for all.
Robert N. Minor, Ph.D.
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