Blind Justice
The United States Supreme Court gave the nation a curious sort of birthday present on the eve of the July 4 holiday: an unintended opportunity for a piercing discussion of this nation’s fundamental values. In a weeklong flurry of eye-popping judicial activism and ideological triumphalism, the court shredded some basic legal doctrines and moral principles that have guided this nation’s conscience for more than a century. Nothing could have done more than last week’s rulings to focus our collective attention on the meaning of democracy and justice.
The decisions, touching on racial equity, church-state separation, antitrust regulation and more, cap off a judicial year — the court’s first full year under Chief Justice John Roberts — in which the justices executed a hairpin turn to the right with all the subtlety of a Hollywood stunt driver. Roberts, alert readers will recall, was hailed by left and right alike at his 2005 nomination for his “moderate” temperament, his “open-mindedness” and abiding concern for “judicial stability and humility.” Once in the driver’s seat, however, Roberts threw caution to the wind and molded a radically right-wing core group that was single-mindedly ideological and shameless in tossing aside, in one disgraceful decision after another, decades of settled law and precedent.
Though only four in number — Roberts plus Antonin Scalia, Clarence Thomas and Samuel Alito — the radicals were usually able to get their way with the concurrence of the merely conservative Justice Anthony Kennedy. If this is the humility the young Roberts shows in his first year, American justice is in for a wild ride in the coming decades.
Of all these decisions, the most appalling was the last major ruling of the session, Parents v. Seattle, outlawing public-school integration plans in Seattle and in Louisville, Ky. By a narrow 5-4 majority, the court all but overturned Brown v. Board of Education, the landmark 1954 school desegregation ruling that was arguably one of the moral high points of American public life in the 20th century. In his decision, Roberts blithely claimed he was actually upholding Brown, whose purpose, he wrote, was to achieve a “colorblind” society rather than to advance racial justice, as most of us supposed.
By his logic, government is barred from doing anything that acknowledges race — even if it is intended, as in the current case, to advance racial justice. Kennedy, in his separate concurrence, allowed that there might be a legitimate program somewhere to advance racial justice, but he left Americans guessing about just how to find it and, in effect, strongly discouraged from trying.
The reading of the decision left the court’s so-called liberal wing — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — literally slack-jawed in rage and shame. The normally unflappable Breyer, who authored the liberal dissent, spent 20 minutes at the bench passionately denouncing the court’s ruling and, by implication, its overall direction. “It is not often in the law,” Breyer declared, “that so few have so quickly changed so much.”
Less noticed but hardly less damaging to minority rights was a ruling two days earlier, Hein v. Freedom From Religion Foundation, that limited the right of citizens to challenge religious encroachment on government. The suit, brought by a group of church-state separation activists and backed by the main Jewish organizations, challenged a program run by the White House Office of Faith-Based and Community Initiatives.
The unit regularly stages conferences where churches are exhorted to apply for government funds. The plaintiffs argued that the conferences use tax dollars to promote religion, something the Supreme Court has repeatedly ruled unconstitutional.
Years ago, the court ruled that individual taxpayers may not use the courts to complain about the way Congress allocates their tax dollars; unless they can show they were individually damaged, they must take their beef to the ballot box. But the court created an exception for religious complaints, ruling in 1968 that offense to one’s religious conscience automatically constitutes “individual damage.”
That didn’t stop the Roberts Court, however. The court ingeniously ruled, 5-4, that the 1968 religious exception applied only when taxpayers complained about congressional spending. Since the budget of the White House faith-based office comes from the general funds of the executive branch, it doesn’t count. In effect, the court said, you can complain if you don’t like the way Congress voted, but if the president decides to pull an end-run around Congress, you’re out of luck.
That same penchant for tortured logic and contempt for precedent, all in the service of right-wing ideology, showed up in one decision after another this year. In one ruling last week, the court decided — 5-4, of course — to overturn a 1911 Supreme Court decision barring price-fixing collusion between manufacturers and retailers, part of the trust-busting legacy of that radical lefty Theodore Roosevelt.
Even more astonishing, the court decided earlier this month, 5-4, to reject the appeal of a convicted murderer who had filed his appeal two days too late, after a federal judge gave him the wrong filing deadline. In this case, Bowles v. Russell, the Roberts Court overturned no fewer than two high court precedents, both allowing some flexibility in court filings, in order to reach the bizarre conclusion that the Supreme Court could not correct a mistake by a lower federal judge — one of the most basic functions of a high court of appeals in any society governed by law.
Most notorious, and perhaps most ominous, was the court’s 5-4 decision earlier this year to uphold a federal ban on so-called partial birth abortions, the first time the court ever upheld a ban on a specific abortion procedure — or any specific medical procedure. The ruling reversed a 2000 Supreme Court decision upholding precisely the same procedure, by a 5-4 majority that included then-justice Sandra Day O’Connor. The new ruling appears to move the court one step closer toward the longtime conservative goal of overturning the 1973 Roe v. Wade ruling.
Almost as disturbing as the Roberts Court’s audacity in seeking to overturn America’s judicial legacy is the narrowness of the mandate with which it presumes to do so, echoing the Bush administration itself. Today’s Supreme Court is made up of two deeply hostile, four-member blocs, with Justice Kennedy in the middle.
Of the court’s 68 signed decisions this year — itself a low, reflecting conservatives’ belief that courts should do less — fully 24, or 35%, were decided 5 to 4, with Kennedy in the majority every time. Of those 24, most observers say 19 were ideological rulings. Of the 19, the conservatives won 13; the liberals, six.
Among the handful of liberal victories, one was a crucial case in which the court decided, over the conservatives’ objections, that the Environmental Protection Agency had the power to act against greenhouse gases endangering the planet, even though the agency didn’t want to.
Another, more telling case involved a convicted murderer from Texas whose death sentence was overturned on the grounds that he was delusional and could not understand the relationship between his crime and his punishment, making execution “cruel and unusual punishment” under longstanding court doctrine. The convict, Scott Panetti, admitted that he committed the murders — or at least that “Sarge,” one of the numerous personalities inhabiting his body, had done so — but he insisted his sentence was part of a plot to block his divine mission. He even tried to call Jesus to the stand.
Roberts, Alito, Scalia and Thomas saw no reason he should not be executed. Kennedy sided with the liberals. This is what judicial liberalism has come to.
Roberts and his comrades insist they are acting to restore a vision of a more constrained court and a more clearly defined Constitution. Their actions show something else: a more constrained vision of individual rights and a society more obedient to authority. However much the chief justice may flatter himself about “colorblindness,” the blindness is not to color, but to justice.
A message from our Publisher & CEO Rachel Fishman Feddersen
I hope you appreciated this article. Before you go, I’d like to ask you to please support the Forward’s award-winning, nonprofit journalism during this critical time.
We’ve set a goal to raise $260,000 by December 31. That’s an ambitious goal, but one that will give us the resources we need to invest in the high quality news, opinion, analysis and cultural coverage that isn’t available anywhere else.
If you feel inspired to make an impact, now is the time to give something back. Join us as a member at your most generous level.
— Rachel Fishman Feddersen, Publisher and CEO
