Can the Supreme Court Be Pure Again? (Was It Ever?)

The confirmation hearings for Judge Sotomayor are a foregone conclusion, with the dust raised by Republicans barely masking the bald fact that the Democratic majority can vote in whomever they want. In any case, a ritual that resembles liar's poker more than a serious interrogation of judicial philosophy will stay true to form, with much dodging and weaving on the nominee's part. This time around the Democrats no doubt feel that they must redeem themselves. John Roberts and Samuel Alito managed to disguise their true reactionary colors so successfully that their hearings were sweetheart kisses from all but a few liberals (one of those being the prescient Sen. Obama, who wasn't fooled for a moment).

Sotomayor can expect to be grilled on her supposed ethnic bias and gender issues, but the real issue has nothing to do with either. It has to do with the taint that has been on the Supreme Court since the shameful ruling over the 2000 Presidential election. The purity of the justices, their supposed detachment from the dirty business of politics, was exposed as a sham. Defying the court's own long precedent, the right wing simply installed George Bush by fiat. They did so willfully, smugly, openly, and without remorse, figuring that it was payback for the activist decisions initiated under the liberal Warren court. Nine years later, the irony is that if Sotomayor were the partisan zealot so ridiculously portrayed by her opponents, she'd fit right in. Her balance and impartiality could actually be hindrances, although we are told she's good at judicial street fighting -- let's hope so.

It may take a scrapper to shake up a court that has drifted as far out of touch with America's collective consciousness as the one that tried to sink the New Deal during the Great Depression. We are very fortunate that the liberal justices so reviled by the right wing gave us civil rights, school desegregation, abortion rights, the absence of mandatory school prayer, the Miranda rights for arrested suspects, and general advocacy for ordinary citizens. By comparison, Chief Justice Roberts has almost without exception voted for corporations over individuals, and he has used his prerogatives to seek out cases where he can weaken Miranda rules and most recently, open the door for overturning the Voting Rights Act of 1967, the single most important legislation that keeps the South from sliding back into racist practices of the past.

Skeptics will argue that the Supreme Court has always been political, or at least biased toward left or right, that only the naive believe that any branch of government can -- or should -- be impartial. If that's true, then the statue of blind Justice holding her scales in the balance should be removed from the premises. The present court is unusually impure, as Bush v. Gore clearly evinced. The only good that came from that corrupt decision was to expose how harmful it is when a democracy is saddled with judicial ideologues. Bush compounded this corruption by infiltrating the whole federal judicial system with a vast number of reactionaries and religious fundamentalists. It will take years to unseat these lifetime appointees, but Pres. Obama needs to start the work, ignoring red herrings like ethnicity, faith, and gender.

Published in the Washington Post

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Comments

[QuietLightTraveler]

Any court that I have observed in this country, supreme or not, was nevertheless, supreme bull ____.
The court's in this country need to be overhauled. Too much process and not enough justice. Many of the judges loose sight of what they are there for.

[JD44Irish]

There is no doubt that Bush v. Gore should have been considered a non-justiciable political question and the Court should not have heard it. That decision did put a taint on the Court and it should have punted on the question and let Florida handle its elections as it saw fit.

I disagree that Altio and Roberts hid their true colors. Alito was notoriously conservative, more so than Roberts and more so than failed nominee Harriet Meyers. His record on abortion alone was enough to outrage liberals as he favored mandatory parental notification and similar hurdles prior to obtaining an abortion. That was well vetted at his hearings. In fact those hearings were so acrimonious that his wife left in tears because the attacks got so personal and down right cruel at some points. Robert's at the time of confirmation was considerd one of the most respected appellate justices in America. He still is among his peers.

As to Robert's voting record, we are told that he frequently sides with corporate America without telling us why those decisons were wrong. Not every ruling in favor of corporate america is a wrong ruling. In fact if we believe that the special interests and big business has held out Congress captive, then is stands to reason that the laws are skewed in favor of corporate america. The problem then would seem to lie with Congress and not CJ Roberts.

[Pablo175]

Deepak-

I am so glad that you are expanding your expertise into the legal and political worlds.

I don't understand your point about Obama ignoring issues like race faith and gender. Isn't that why he picked Sonia Sotomayor?

Are you troubled at the prospect of 6 catholics on the court?

[Samayavajra]

Chopra suggested that Obama not focus on the "red herrings" of ethincity, faith, and gender. The point is that the focus should be on restoring the norm of the Federal Courts. It's not just the Supreme Court, but also the lower courts which Bush loaded with radical right-wing Christian fundamentalists. The fact that there are six Catholics on the court doesn't really provide enough info for a judgment because Catholicism is a lot like Judaism in that it tends to blur the line between ethnicity and religion. Many, many, many Catholics do not regularly attend services and have varying levels of fidelity to the official doctrine, but still maintain a "Catholic" identity in some respects. The same cannot be said of the radical Evangelical population.

[JMBrodie]

From Wikipedia

Plessy v. Ferguson legitimized the move toward segregation practices begun earlier in the South. Along with Booker T. Washington's Atlanta Compromise address, delivered the previous year, which accepted black social isolation from white society, Plessy provided an impetus for further segregation laws. In the ensuing decades, segregation statutes proliferated, reaching even to the federal government in Washington, D.C., which re-segregated during Woodrow Wilson's administration in the 1910s.

William Rehnquist wrote a memo called "A Random Thought on the Segregation Cases", when he was a law clerk in 1952, during early deliberations that led to the Brown v. Board of Education decision. In his memo, Rehnquist argued that "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed." He continued, "To the argument… that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

http://en.wikipedia.org/wiki/Plessy_v._Ferguson

And one has the gall to worry about what a "wise Latina" would do on the Court.

[provgrays]

JM,

Don't cite Wikipedia as a primary source.

[JMBrodie]

I hear you, but the info is still accurate. Prove me wrong.

[robbep]

Like the story of Santa Claus the blindfolded lady of justice is a myth. The supreme court has never been anything but a political instrument used to blunt the aspirations of the poor and the alien in this country. We have had some breakthoughs with the so called liberal activist judges in areas like civil rights and affirmative action but I dont know if they will stand up to an assault by the 5 klansmen who currently reside in the court. The question I have is what do we do as a society when the court that we go to for justice does not believe in justice for all? Do we keep pretending that we live in a just society that works for all or do we look at the court realistically and start making some changes? I think the first place to start is eliminating the lifetime employment that these unelected judges receive. I also think a mandatory retirement age shld be considered. You have 80 year old men making decisions that affect our lives. How many of you go to an 80 year old doctor or lawyer? What about 80 year old airline pilots? If you wld not want to have an 80 year old doctor then does it make sense for us to have 80 year old judges?

[Samayavajra]

Lifetime appointment is important and should be very carefully examined before any tampering is done. The system acts as a fail-safe and has two important effects. First, the appointees never have to worry about an election of review, so as long as they remain within the boundaries of the law, they will not be impeached. If you haven't noticed the never-ending election cycle, this is important in giving the judges the freedom to rule independent of populist opinion. The second, which frequently benefits social conservatives but IS important - it ensures that the court remains at least a generation or two behind society, meaning it is insulated from political fads.

[NoMoreInsanity]

Read "Life, Inc." by Doug Rushkoff and it will answer why these folks in black robes almost always go with corporations. There's nothing "pure" about the U.S. Supreme Court. Unfortunately; I do not believe it ever will be. Maybe some day we won't even need one when / if there is a world-wide shift in conciousness.

[provgrays]

The Supreme Court is an unelected cabal with no accountability to the public they allegedly serve. It is undemocratic and the lifetime appointments breed reckless arrogance.

[RealityCheck101]

Dude you don't have any idea how our system of government works. You need to read Alexander Hamilton's federalist papers 78. The Supreme Court has neither the will of the legislator or the force of the executive. Its checked by the President who is elected and thus nominates judges who are confirmed by Congress. If judges were elected it would taint the court.

[provgrays]

Dood,

You state the ideal of a SupremeCourt but it does not serve the public the way it was intended. The President only appoints justices. He cannot check reckless actions by the Supremes.

They recently approved the right for your property to be taken away for any reason. You defend THAT?

[aramos]

Not perfect, but still the best system in the WORLD.

[Kalena]

NOT!

[JMBrodie]

Let's just stop at "not perfect." We are too fond in this co8ntry of patting ourselves on the back rather than taking hard looks at our systems.

Our education system is a mess for this very reason. We have been reduced to having to look at what China, India and other nations are doing because they are doing better than we are -- their students know more.

We have a good system, but we are not along. There are, believe it or not, other smart people on the planet.

[JMBrodie]

..we are not alone...

[robbep]

can you defend that statement? pls tell me why our system of government is the best in the world.

[daffey]

The more I read things like this, the more I'm reminded that there is a Religious Left every bit as much as there is a Religious Right. And they both suffer from the same obvious shortcomings. From a spiritual perspective, it is always best when we don't make thinly veiled assumptions that one particular party is somehow living taint and the other somehow closer to the way, the truth, and the life. They’re political parties. That’s all.

[Queenhuh]

Yes Deepak, you have once more eloquently summed up this issue. My opinion has been and always will be the same. Much the same as "health care" is a misnomer since there can be no "care" where profit is involved, the same perception applies to the greatest court in the land. As long as they are politically nominated, have political ties, political ideologies, there can be no absolute fair application of the law or rights. Judges should never be voted for locally the way any politician would be. All judges should be hired for the job based on vast experience, knowledge and application of the the laws. Politics sullies, dirties and taints everything it touches. Bush Sr. has spoken of his "mistake" in appointing David Souter whom he thought would be far more conservative than he turned out to be.

[JMBrodie]

But Bush, Sr. just loves Clarence Thomas.

[RealityCheck101]

You obviously are not a student of the Supreme Court. It has been a political institution ever since John Marshall handed down Marbury v. Madison. The court has always taken into account the political wills of the day. The same court who struck down New Deal legislation reversed course in 1937 after FDR's landslide victory. Liberal judges aren't any less partisan than conservative ones. You just think the liberal justices are more pure of heart because they are closely aligned with your political views. When a issue comes before the court that is vague what do you think they are going to do? Obviously, they will interpret the law to favor their world view. Obama nominated Sotomayor because she will interpret the law to favor liberal policies and vice-versa with Bush's nominees.

[iyamchazz]

Where, in her 17 years on the bench,
is this liberal bias evident?

[daffey]

People usually don't see bias if it agrees with their own beliefs. Bias belongs to those with whom we disagree.

[RealityCheck101]

Most cases that come before a judge are relatively easy to decide based on the expressed law or strong precedents. It is the rare cases that involve gray matters which result in future precedents that are significant. So give me a break. When those cases arrive she will side with the liberal point of view. I'm not knocking it, she has every right to do it. So spare me the idea that she is a perfectly objective impartial judge. That is impossible, she is human. When a law can be interpreted two ways or more discretion comes into play. Obama nominated her because she is a liberal and she has the resume to be a Supreme Court judge, case closed!

[mommadona]

To answer your questions, no and no - it can and should be 'balanced'

http://www.sacred-texts.com/tarot/pkt/img/ar11.jpg

[JGriffin]

To answer the questions posed:

1. No.

2. Not really, although it's far worse now than it's ever been.

If anyone wants to account for Bush v. Gore, ask yourself how many truly unbiased newspapers, TV networks, books, magazines, films or online websites exist today.

There's your answer.

Impartiality perished with the rise of the Fourth Estate* in America during the 1970's and 1980's, and our Supreme Court is just one minor symptom of a much, much bigger problem.

* -- The term "Fourth Estate" has nothing to do with Germany or Operation Paperclip.

[PatsyT]

Right on Mr. C. Say it loud and say it proud.

These guys may as well take the rac est branding iron out of this
fire they built and seer there own foreheads. It would save time and energy.
They are showing who they are with every foul scented word that creeps out of their mouth.

[HesDanTheMan]

Oh My G/O/D yes, yes, YES! Thank you Mr. Chopra. Thank you!