In recent years, the United States Supreme Court has turned corporate treasuries into campaign slush funds for CEOs, demolished campaign finance laws, aided and abetted pay discrimination, made it much harder for consumers and workers to file class action lawsuits against corporations that have cheated them, and kindly delivered the White House to one lucky Republican from Texas.
Study after study has found that the Supreme Court under Chief Justice John Roberts and his predecessor William Rehnquist has swerved hard to the right, systematically favoring corporate interests over workers, consumers and voters -- to a shocking extent.
So why does a plurality of Americans still think that the Supreme Court leans to the left?
A new poll from Public Policy Polling finds that 36 percent of Americans believe the Supreme Court is "too liberal," compared with just 30 percent who find it "too conservative" and 29 percent who think it's ideologically "about right." The poll highlights a problem that has long plagued progressives who care about the courts: while the Supreme Court and lower federal courts continue to drive to the right, many Americans, strangely, have come to believe that the courts tilt to the left.
This misperception of the federal judiciary, and especially the Supreme Court, is no fluke. It is the residue of more than a half-century of propaganda by the right labeling the Supreme Court a bastion of runaway liberal judicial activists who supersede the will of the people to impose their own views on innocent Americans. This campaign began with "massive resistance" to landmark civil rights and civil liberties decisions of the Warren Court, most notably Brown v. Board of Education (1954), which desegregated the schools and prompted an "impeach Earl Warren" movement; Engel v. Vitale (1962), which struck down compulsory prayer in the schools and was blamed for the moral downfall of America; and Miranda v. Arizona (1966), which gave people basic rights in encounters with the police and was decried as "pro-criminal." The campaign against the Court intensified with the response to Roe v. Wade (1973), which recognized the reproductive rights of women as a matter of constitutional privacy but has been depicted ever since by the right as the epitome of illegitimate judicial activism.
The movement to turn the clock back on civil rights and civil liberties in the courts has continued for decades and been bolstered by the Chamber of Commerce and big business, which want to see the federal judiciary enshrine new constitutional rights for corporations while dismantling public regulation.
In recent decades, right-wing leaders have worked in popular culture to attack the courts as a liberal peril while successfully organizing to dominate and control legal institutions to create courts that no longer look out for the rights of all Americans. They have set up law schools and legal societies to promote corporate and right-wing commitments, have promoted the appointment of reactionary judges and Justices, blocked the appointment of even moderate jurists, and defined a legal agenda that subordinates individual rights to government power and public regulation to corporate power. Right-wing success in remaking the judiciary in the image of the Republican Party has not led conservatives to curb their bitter attack on "liberal judicial activism," a fantasy that is several decades out of date but indispensable to this smoke-and-mirrors operation.
Without mass education by progressives to reclaim the public narrative about the courts, popular illusions about the nature of our right-wing judiciary will persist. A perfect example of public confusion is the reaction to the Supreme Court's narrow decision to uphold the Affordable Care Act. Chief Justice Roberts' decisive vote to uphold the law was hailed on the left and seen as a stunning betrayal on the right. But what got little attention was how conservative the logic of the decision to uphold the ACA really was. While the final outcome was good news for progressives, Roberts' opinion laid the groundwork for severely restricting the ability of the federal government to solve national problems under the Commerce Clause -- harkening back to the gilded-age Lochner Era, when the Supreme Court routinely struck down regulatory protections for ordinary Americans.
The left needs to wake up. PPP found that less than half of Democrats recognized the conservative leaning of the Supreme Court. As the Supreme Court's blockbuster decisions on marriage equality, voting rights and affirmative action come down this spring we may have some reasons to celebrate and others to mourn. But we will doubtless be reminded again that Supreme Court decisions often have much less to do with evolving legal theory than with which president appointed the Justices. Conservatives know this and liberals need to wake up to it as well.
Four decades into conservative control of the Supreme Court (through the Burger, Rehnquist and Roberts Courts), and well into President Obama's second term, conservatives still promote the absurd story that the Supreme Court and judiciary are "liberal." We must do everything we can to correct the record and dispel the lingering false impressions left by decades of strategic disinformation.
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