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Tuesday, July 24, 2007

Where do we go from Here?

One of the Supreme Court’s most disastrous terms in recent years drew to a close in June, and in many ways it was a disastrous term. The Roberts Court evinced its willingness to dismantle long-standing precedents while refusing to explicitly overturn them. The impact of the loss of Sandra Day O’Connor and the addition of Justices Roberts and Alito was dramatic. The opportunity of the president to appoint these two justices to the Supreme Court will likely be the Bush Administration’s most enduring legacy.

The right wing move of the Court is clear from the fact that conservative Justice Anthony Kennedy is the Court’s new “swing vote.” Justice Kennedy found himself in the majority in virtually every case and often sided with the Court’s four extremely right wing justices. As we projected in October, the Court delivered some controversial opinions that dealt severe blows to individual rights, equality, liberty, and fundamental constitutional protections.

The Roberts Court saved some of its most devastating and far reaching opinions for later in the term, delivering holdings that limited the abilities of female employees to demand equal pay, denied taxpayers the right to challenge the Bush Administration’s use of taxpayer money to support religion, limited the free speech rights of high school students, and undermined the promise of Brown v. Board of Education. Hold on to your hats …

Gonzales v. Carhart: Goodbye to Reproductive Freedom

In April, the Court eviscerated more than thirty years of precedent requiring that abortion restrictions provide an exception to protect a pregnant woman’s health. The Court upheld a federal law banning so-called “partial birth abortions” even though the law had no health exception, prioritizing the health and lives of women and the medical judgment of their doctors behind the desire of Congress to dictate morality. During their confirmation hearings, Justices Alito and Roberts were questioned extensively about their willingness to adhere to precedent and specifically to uphold the landmark case of Roe v. Wade. Both made assurances to the Senate Judiciary Committee that they would respect this and other important precedents. Despite these promises, both justices immediately took the opportunity to abandon this precedent even to the detriment of women’s health.

Parents Involved in Community Schools v. Seattle School District #1; Meredith v. Jefferson County Board of Education: Goodbye Brown v. Board

In possibly the most discouraging and activist decision of the term, the usual suspects of Roberts, Alito, Thomas, Scalia and Kennedy undercut one of our nation’s most cherished precedents. By holding that the attempts of democratically elected school boards to racially integrate their schools were unconstitutional, the Court did significant damage to the promise of racially integrated schools and racial equality that were expressed by the Court in Brown v. Topeka Board of Education. Even more than Roe v. Wade, Justices Alito and Roberts had expressed considerable respect for this important precedent at their confirmation hearings. They nevertheless took their first opportunity to undercut that vital decision. As Justice Breyer stated in dissent: “what has happened to stare decisis?. . . this is a decision that the Court and the Nation will come to regret.”

Ledbetter v. Goodyear Tire & Rubber Co.: Discrimination OK (if it lasts long enough)

Once again ignoring past precedent, the majority of Justices Alito, Roberts, Scalia, Thomas and Kennedy held that Lilly Ledbetter could not bring a suit for pay discrimination despite being paid less than men in the same position for approximately twenty years. Their reason? Ms. Ledbetter should have brought the case within 180 days of the first act of pay discrimination. No matter that she had no way of learning of the discrepancy until much later or that the discrimination continued for years.

Hein v. Freedom From Religion Foundation, Inc.: President Need Not Follow the Constitution

Justice Alito wrote for the majority – Roberts, Scalia, Kennedy, and Thomas – that federal taxpayers do not have standing to challenge executive branch violations of the First Amendment’s Establishment Clause. Yet again showing their distain for precedent, the Court held that, while citizens can challenge Congress’ use of funds to endorse or support religion, they cannot challenge the Bush Administration’s similar use of funds – even funds. This decision leaves no one who can enforce our Constitution’s important guarantee of a separation of church and state.

Philip Morris USA v. Williams: Jury Verdict Too Harsh … for Big Corporation

In a thoroughly confusing 5-4 decision, joined by the Chief Justice and Justice Alito, the Court reversed the Oregon Supreme Court’s decision affirming a jury’s order that Philip Morris pay $79.5 million in punitive damages to a widow whose husband died after smoking all his life. The majority made an unconvincing attempt to differentiate the jury’s illegitimate consideration of harm to other victims from their acceptable consideration of how reprehensible the defendant’s conduct was – based on how many people have been harmed. Huh? The Court overturned the jury and the state courts, ignoring the fact that Phillip Morris had intentionally covered up evidence of the dangers of smoking and the fact that a smaller damage award would be insignificant to the big company and would not serve to deter future misconduct. The Court left open the question of whether the verdict could still stand if the jury did not consider how Philip Morris’s actions harmed other people besides the specific plaintiff in the case.

Massachusetts v. EPA: Environment 1, Right Wing Agenda 0

It was not all bad news early in the term. In one of the few cases where Justice Kennedy broke from Chief Justice Roberts and Alito and joined the Court’s more progressive members, the Court held that the EPA is required to regulated greenhouse gases in an attempt to ameliorate the impact of global warming. The Chief Justice and Justice Alito would have held that the states and other plaintiffs did not have the right to challenge the EPA in court.

Morse v. Frederick: Children Should be Seen and Not Heard

The Court – in a decision by Chief Justice Roberts and joined by the Court’s other conservatives – limited the rights of high school students to express themselves. Limiting a 1969 student free speech decision, the Court held that school authorities could suppress speech which purportedly advocated illegal drug use, even when that speech does not take place on school grounds. This holding threatens to limit the ability of teenagers to debate a variety of important issues, including, but not limited to, the wisdom of our country’s “war on drugs.”

After two years of the Roberts Court, it is already obvious that the ability of individual Americans and our democratically elected officials to protect our individual rights and liberties and strive for racial and gender equality have been severely circumscribed. It is scary to think about what our country will look like after several decades of the Roberts Court. At the same time, President Bush continues to nominate judges to our federal district and circuit courts – judges who will decide many more cases than the Supreme Court in the coming years. The Senate Judiciary Committee has the ability and the obligation to refuse to confirm any more of these judges who are so damaging to the rights of ordinary Americans. They should not allow this administration to continue to put its mark on our courts through the appointment of more ultra conservative judges.

For more information about important cases impacting your rights, visit http://www.afj.org/check-the-facts/cases/.

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