I was born just a few years after Brown v Board of Education, and for most of my life the Supreme Court was the lodestone, the guiding light of liberal social justice in this country.
Thanks to the Warren Court, I grew up and reached middle age in a country where no one could legally deny me the right to an equal education, to the right to vote, to live and work where I wished, to legal representation, to birth control, to political dissent, to protection from police invasion, to an abortion on demand.
That all started disappearing when RayGun made Rehnquist Chief Justice. But even with Thomas and Scalia, half-century-old rights prevailed.
Until now.
From the Nation:
The
sad irony is that, rather than serve its traditional role as the
institution of government where those shut out of the political process
can find a voice, the Court has used its rulings to strengthen the
already deafening voices of the wealthy and powerful. At the same time,
it has insulated itself and the lower federal courts from the pleas of
the politically disfavored by slamming shut the courthouse doors.
Here is a list of ten areas in which the Court has failed those Americans most in need of its protection.
§ Access to justice: Georgetown
law professor David Cole recently wrote that “what most defines the
Roberts Court may be its hostility to courts themselves.” In case after
case, the Court has erected new hurdles for those who have been harmed
and seek redress in the courts. It has allowed companies to use fine
print to take away the right to trial by a jury or a judge for consumers
and employees; it has also made it more difficult for victims of
corporate wrongdoing to band together, and made it easier for claims of
relief to be thrown out of court at the earliest stages. As Justice
Elena Kagan wrote in dissent in one such case, the “nutshell version” of
the message for those seeking to stand up for their rights in court is:
“Too darn bad.”
§ Business: The
Roberts Court has made Mitt Romney’s statement that “corporations are
people, my friend,” a central component of its jurisprudence. It has
imbued corporations with the right to religious expression, as well as
the right to free speech through political advertising and unlimited
political spending. Spurred on by an elite Supreme Court bar largely in
the service of wealthy corporate clients, the Roberts Court has become
the most pro-business Supreme Court in generations. According to a study
written in part by conservative Seventh Circuit Judge Richard Posner,
the five conservatives on the Roberts Court are all among the top ten
most pro-business justices since 1946—with Alito and Roberts ranking
first and second.
§ Workers’ rights: Justice
Ruth Bader Ginsburg wrote in 2013 that the majority of the Court “is
blind to the realities of the workplace.” That blindness has manifested
itself in decisions limiting government employees’ free speech and
collective-bargaining rights; barring Lilly Ledbetter’s claim for
decades of pay discrimination; raising the bar for proving age
discrimination; preventing more than 1 million Walmart employees from
having their day in court to allege gender discrimination; limiting the
availability of overtime pay; redefining “supervisor” to allow employers
to avoid liability; and making it more difficult for employees to prove
retaliation by their employers.
§ Voting rights: The Roberts Court ripped the heart out of the Voting Rights Act in Shelby County v. Holder.
In a stunning display of judicial hubris, the Court dismissed the
15,000-page congressional record in support of the act, as well as the
language of the Fifteenth Amendment, which empowers Congress to enforce
the right to vote free of racial discrimination. The decision was the
culmination of a career-long mission by the chief justice to undermine
the act, which he fought to limit as a young lawyer in the Reagan
administration. And it has unleashed a torrent of state
voter-suppression measures that target African-Americans, Latinos, the
poor and the young.
SNIP
§ Guns: The
Court struck a blow against those living in communities plagued by gun
violence when the majority held for the first time that the Second
Amendment provides an individual right to gun ownership and struck down
the gun-violence-prevention laws enacted in Washington, DC. This
“law-changing decision,” in the words of then-Justice John Paul Stevens,
upended decades-old Supreme Court precedent on which hundreds of judges
had relied.
§ Religion: The
Roberts Court has drawn sharp lines favoring believers over
nonbelievers and majority believers over minority believers. The Court
has upheld the practice of beginning town meetings with a (Christian)
prayer, denied taxpayers standing to challenge a public-subsidy program
that gave money to private (Christian) religious schools, and reversed a
decision prohibiting the display of a cross in a federal park. Also, as
Justice Ginsburg wrote in her Hobby Lobby dissent,
“In a decision of startling breadth, the Court holds that commercial
enterprises…can opt out of any law (saving only tax laws) they judge
incompatible with their sincerely held religious beliefs.” In other
words, they can impose their religious views on the rest of us.
Although
the Court’s docket for its tenth term is not yet complete, it already
includes cases that could deprive some 13 million low-income Americans
of the subsidies they need to afford health insurance; affect whether as
many as 8 million LGBT Americans in thirty-three states can marry;
dilute the power of minority voters; permit employers to force women to
choose between healthy pregnancies and their jobs; and make it much more
difficult to remedy housing discrimination.
John
Roberts turned 60 in January. Because of lifetime tenure, we may be
looking at another two decades or more with Roberts as chief justice.
But two of his fellow conservative justices—Scalia and Kennedy—are 78.
It is likely that the next president will nominate their replacements,
as well as those for 81-year-old Ruth Bader Ginsburg and 76-year-old
Stephen Breyer. The 2016 presidential election is likely to determine
the Court’s direction for at least a generation. Will it be a Roberts
Court in which the chief justice is consistently in the majority, or
will it be one in which Roberts plays the role of dissenter as he
watches a progressive majority remedy the damage of his first decade?
The voters will decide.
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