Monday, July 02, 2007


A "Progressive" look at today's Supreme Court

A former Supreme Court clerk for Justice Blackmun, Ed Lazarus, has reviewed the just-completed Supreme Court term and issued a “progressive” spin on it. He begins with a synopsis of some of the bigger cases decided:

“By 5-to-4 votes, the justices upheld limits on abortion, dealt a staggering blow to school desegregation, lacerated campaign finance reform, made it harder for women to sue for equal pay, curtailed the free speech rights of students, loosened various legal restrictions on business and greased the skids for convictions in death penalty cases.”

In other words: “This term at the Supreme Court was a nearly unmitigated disaster for progressives.” Under John Roberts, Court Re-Rights Itself

Normally, I would describe such descriptive nonsense as mere “hyperbole” but for all I know this is really how progressives think. Let’s review:

1 - “upheld limits on abortion” – the Court found that restrictions on late-term abortions were not unconstitutional. SCOTUS - Gonzales v. Carhart

2 - “dealt a staggering blow to school desegregation” – kids were prevented from going to certain schools because there were already too many like-skinned kids at that school. The Court ruled that this was wrong. As Justice Roberts succinctly put it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (and see Justice Blackmun’s eloquence on this matter Compare and contrast) SCOTUS - Parents Involved...

3 - “lacerated campaign finance reform”Remember, this case involved content-restricted political speech which should be the lodestar of First Amendment protection from Congressional interference. I usually try to be respectful of opposing opinions but honestly – the criticisms of this decision and defense of the law – beginning with the dissent – have been uniformly vacuous. I’m convinced that had the group been People for the American Way vice Wisconsin Right to Life, the progressive spin would be 180° different.

4 - “curtailed the free speech rights of students” – I can understand opposing viewpoints on this decision (“Bong Hits 4 Jesus”) although I basically fall in with Justice Thomas (who doesn’t think that this matter should be of federal concern; instead we should be respectful of the authorities and responsibilities inherent with a public school’s in loco parentis role). What I can’t understand is the intellectual gyrations a “progressive” has to go through to argue that a high-school kid at a school-sanctioned event somehow has greater free-speech rights than a group of adults urging their fellow citizens to contact their elected officials on a legislative matter.

5 - “made it harder for women to sue for equal pay” – harder as compared to who else? men?…the law clearly states that “An individual wishing to bring a Title VII lawsuit must first file an EEOC charge within, as relevant here, 180 days “after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e–2(a)(1). SCOTUS - Ledbetter v. Goodyear. She was found to have filed after the 180 days. Justice Ginsburg, in her dissent, practically begs Congress to get involved:

“Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

…highlighting once again one of my favorite points – the left is rarely constrained by Court decisions it doesn’t like; a simple legislative decision awaits.

6 - “greased the skids for convictions in death penalty cases” – the Court issued several Death Penalty-related decisions this past term but I‘m guessing he’s referring to the Washington State case (Uttecht v. Brown) which challenged the dismissal of a potential juror based on the perception that the juror would have a hard time imposing the Death Penalty. I think Justice Kennedy’s decision merely accentuates the need to give deference to the trial court’s decisions when the trial court rules on “…the demeanor and qualifications of a potential juror.”

Justice Blackmun’s tenure on the Court, especially towards the end, has been recently questioned as to just how much of the Justice’s work was his as opposed to his clerks’. Reading this progressive critique of the current Court by one of his former clerks is a non-comforting insight into the often over-hyped intellect of Supreme Court clerks and, by extension, the Justices who hire them.

It's results, baby. That's all that matters for them. Results -- not law -- because the results are the law.
On the equal pay issue, the Court was remarkably obtuse in failing to applying a pretty common-sense common-law rule involving the calculation and/or tolling of the time to file. Discovery of the actual harm often post-dates such deadlines; the Court's ruling encourages the filing of garbage "just-in-case" complaints, lest the deadline pass, while rewarding subterfuges and pretexts designed to cover such violations.

One need not be either a feminist or a judicial liberal to see that case as a form of judicial activism - in this case, activism in derogation of general common-law principles.
I disagree Bruce - I think Justice Alito lays out a clear line of reasoning for why the Court came out where it did - if Congress wants pay to be treated differently , it can certainly pass appropriate legislation doing so. Justice Ginsburg relies on Policy arguments which the Court (particularly the likes of Justice Ginsburg) are ill-equipped to handle.

You can call it Judicial activism but I believe that no matter how the law read, Justice Ginsburg would have found a way to find for Ledbetter whereas had the law read a 20 year window for filings, justice alito would probably have sided with Ledbetter...except the case probably wouldn't have to SCOTUS because the 11th Circuit would also have found for Ledbetter - let's remember all SCOTUS did here was uphold a lower-court ruling.
Very nice summary.

I was chatting with a liberal friend of mine who was very upset at the Supreme’s Court disastrous term, and, of course, blaming Bush. She quoted Justice Stephen G. Breyer as referring to the Court’s work this term as "It is not often so few have quickly changed so much”. [Apparently this was a comment included in a long dissent delivered in the courtroom regarding the cases that struck down using race for school assignment plans in public in Louisville, Ky., and Seattle,1,1221510.story?coll=la-headlines-frontpage]

By the way the Los Angeles Times headline for the cases was “Justices reject school integration efforts” while the Associated Press headline was “The government must treat citizens as individuals”.

I asked what about in 1937 and Supreme Court Justice Owen Roberts and the switch in time that saved nine?

“Franklin D. Roosevelt, the Democratic Party candidate, was elected as president in 1932. Over the next few years Roberts and the other justices who were supporters of the Republican Party, ruled against the National Recovery Administration (NRA), the Agricultural Adjustment Act (AAA) and ten other New Deal laws.”

Roosevelt Court Packing Plan: “On 2nd February, 1937, Franklin D. Roosevelt made a speech attacking the Supreme Court for its actions over New Deal legislation.... Roosevelt announced that he was going to ask Congress to pass a bill enabling the president to expand the Supreme Court by adding one new judge, up to a maximum off six, for every current judge over the age of 70.”

“On 29th March, Roberts announced that he had changed his mind about voting against minimum wage legislation. Hughes also reversed his opinion on the Social Security Act and the National Labour Relations Act (NLRA) and by a 5-4 vote they were now declared to be constitutional.”

Although my friend taught high school history for thirty years, she said she never heard of it or the purported reasoning. Among the many things the New Deal regulated was the amount of crops allowed to be grown and what they sold for, including mandating that food be destroyed during a time of hunger in America. Could the Federal government powers be so expansive to include telling American citizens what they could grow on their own property for their own use? See
Thanks Gene - hard to believe anyone teaching history could not have heard of the proposed Court packing...and that wheat case remains one of the worst thought-out decisions ever.
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