It is amusing, in a wry sort of way, to witness the tantrums and hear the gnashing of teeth in right-wing circles over the several big cases they have just lost at the U.S. Supreme Court.
Spare them no sympathy.
You might think that losing has become more than they can bear.
But in fact, the sturm und drang reveals that conservatives are so accustomed to winning at the court that they have forgotten how to lose, much less lose gracefully.
Those of us who came of age during the era of the Earl Warren Court and its great liberal rulings on school segregation, police interrogations and legislative apportionment were like the proverbial blind men trying to describe an elephant by its separate parts. We assumed that’s how the court always was and would be.
In fact, the liberal chapters in the court’s history have been few and often far between. For most of its history, continuing even to the setback it dealt last month to clean air, its decisions have largely favored government and corporate power at the expense of most Americans.
Its 19th century decisions brought on the Civil War and legalized racial segregation. Later cases struck down laws and regulations intended to protect child laborers and other workers under the smug pretense of upholding their right to contract. The court sanctioned concentration camps for American citizens of Japanese descent, failed to curb the excesses of the Patriot Act, and profaned the First Amendment by reading into it a right for corporate money to control our elections. It is allowing the resegregation of public schools and has eviscerated the Voting Rights Act.
It’s all spelled out in a powerful and disturbing recent book, The Case Against the Supreme Court by Erwin Chemerinsky, a much-published scholar and Supreme Court advocate at the University of California, Irvine, School of Law.
“It is no defense of the Supreme Court to say that it could have done much worse,” he writes. “My central point is that it could and should have done so much better.”
Conservatives may not agree with his examples but they should admit his conclusion.
“Let’s drop the charade,” wailed a headline over an Andrew McCarthy column in the June 27 National Review. “The Supreme Court is a political branch, not a judicial one.”
McCarthy’s screed, aimed largely at Chief Justice John Roberts for saving the Affordable Care Act yet again, gave him no credit for his dissent against same-sex marriage.
And he went on:
“Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?”
I read the piece carefully for mention of another great case that could be laid at Roberts’s feet — the Citizens United decision, five years ago, that is sealing this nation’s doom as a corporate oligarchy.
To liberal citizens and even many conservatives, that decision was as activist, as political, as wrong, and infinitely more damaging than McCarthy attributes to the Obamacare outcome.
But his National Review column didn’t allude to Citizens United even indirectly.
Nor did it acknowledge that there was never an iota of speculation about how the most conservative justices — Scalia, Alito and Thomas —would vote on marriage, Obamacare, or the right of the people of Arizona to take redistricting out of the hands of a morally and politically corrupt legislature.
They vote just as much “in lockstep,” as the columnist puts it, as he claims the liberals Ginsburg, Breyer, Kagan and Sotomayor do.
The only doubts are how Anthony Kennedy will cast his swing vote and whether Roberts will on occasion save the court, as he has done twice on Obamacare, from going even further than the American public is likely prepared to accept.
So let’s make this a teaching moment.
There are points about the court that liberals and conservatives can and should agree upon.
- Confirm no more nominees who are unwilling to say whether they think cases like Roe v. Wade or Citizens United were rightly or wrongly decided. Every candidate comes with opinions. Some, unfortunately, lie about them.
- Elect presidents who will establish fairly balanced nominating commissions, as Jimmy Carter did.
- Amend the Constitution to term-limit justices at 18 years, long enough for distinguished service but not so long as to put the court so far out of touch with the public interest as it has often been. Eventually, vacancies would occur at two-year intervals, giving each president the opportunity to fill at least two.
Speaking of being out of touch, no other justice is so far out as Clarence Thomas.
It was beyond preposterous for him to assert in dissent that the denial of marriage no more denied dignity to same sex-couples than slavery denied it to blacks or the Holocaust denied it to Jews.
“The government cannot bestow dignity,” Thomas pontificated, “and it cannot take it away.”
America has heard such specious reasoning before. Consider this quote.
“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
That’s from the majority opinion in Plessy v. Ferguson, the 1896 case that legalized 60 years of ruthless racial segregation under the pretense that separate could be equal.
Amazingly, the Supreme Court has never expressly overturned Plessy or acknowledged that it was wrongly decided. It has simply ignored it, as has Congress and the states.
But if the question were squarely presented today, how would Thomas vote?
One can only wonder.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in western North Carolina. Column courtesy of Context Florida.