06/27/2014 01:09 pm ET Updated Aug 26, 2014

Pandora's Supreme Court

The Roberts court is a shining example of the Koch-esque Libertarian interpretation of the Constitution, and unintended consequences that the conservative cohort unleash with their Pandoraish pandering to that deconstructionist slice of right-wing politics.

Installed with much GOP fanfare to allegedly end "judicial activism" the conservative members of the Supreme Court of the United States have been exceedingly activist and partisan and, unlike all other federal justices, have no ethics other than their own good judgment, or lack thereof, binding them.


In an article in 2011, I noted that, amazingly, the Supremes are not subject to the same ethical canons which govern the ethics of other Federal justices. Canon 4C reads:

A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.

In particular, Justices Scalia and Thomas have been the subject of numerous complaints in their exercise of ethics. The devious duo exercised the bad judgment of attending a Federalist Society dinner advertised in their honor that was hosted by the law firm that had just argued against the Affordable Care Act (Obamacare) before the SCOTUS days before.

Thomas trounced 4C again in 2013 for the Federalist Society, prompting Common Cause, amongst others, to petition Roberts to put the Justices under federal ethics canons as they were not clearly living up to ethical self-policing.

Scalia and Thomas also attended at least one of the Koch Brothers secret retreats of the richest people in the world, so hush-hush that even the hotel isn't allowed access to the guest list. Outed by an attendee who broke ranks, their foray into extreme Libertarianism would have gone otherwise unreported.

What are two U.S. Supreme Court Justices doing at a meeting of the people who control the Tea Party and hundreds of think tanks, astroturf groups and Super PACs that are highly partisan and may have interests that come before the court?

Both justices, based on their outside forays into activist politics, should have recused themselves on a wide variety of cases inside the court, including the decisions on the ACA and Citizens United.

Judicial Activism Inside the SCOTUS

What they do outside of the Supreme Court, though, pales by comparison to their activism inside the court, and the unintended consequences of their rulings.

The Citizens United decision to give corporations "personhood" in the realm of political speech unleashed a tidal wave of unlimited money, largely from a handful of John Birchesque-Libertarian right billionaires like the Kochs, the Coors, the DeVos, Mellon-Scaifes, Friess and their junior league of multi-millionaires and a TV personality, the Club for Growth.

What did it buy?
  • Tea Party routs of so-called RINO (Republican in Name Only) moderates in low-voter turnout mid-term GOP primaries;
  • Extremism and gridlock, where compromise is considered capitulation, not good governance as it has throughout U.S. history;
  • Damage to the U.S. credit rating, the Fed being a target of Libertarian wrath;
  • The wasteful government shut down, a $24B political stunt;
  • Hundreds of bills restricting women's reproductive choice or craftily legislating clinics out of business
  • 92 bills restricting voting rights for alleged "voter fraud" whose reality is so small it isn't even a statistical percentage point, to help the Tea Party limit minority turnout.

All began at the door of the Roberts Court. The ripples continue though...

Other Intended/Unintended Consequences

  • It used to be the mob's province, but now Monsanto and other corporates have used their "personhood" to plead the Fifth Amendment to prevent the government from protecting the American public from potentially harmful substances in our food supply.
  • Scientists tell us, to avert a global catastrophe, that 80 percent of the remaining world's oil supply needs to stay in the ground. Corporate personhood gives Big Oil the ability to spend and lobby at epic levels to suppress alternative energy.
  • Political lobbying has soared on both sides of the aisle protecting corporate and large organized interests, often at the expense or personal peril for health and welfare reasons, of the average American.
  • The number of independent voters, often cut out of primaries, has soared to 46 percent as Americans have become disaffected with all politics, allowing the 1 percent to dominate the 24 percent of Americans still registered as Republicans.
  • Foreign corporations can spend millions buying influence on Capitol Hill for financial and trade policy now, but presumably for any other purpose down road as well, without restriction.

Many of the Roberts SCOTUS other decisions are equally troubling.

Unintended Precedents

Take yesterday's unanimous decision in McCullen v Coakley, in which the court struck down a Massachusetts law that put safe zones around health clinics that provide abortion services to keep their doors clear of protestors.

Roberts, wrote for the majority:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks -- sites that have hosted discussions about the issues of the day throughout history.

Justice Scalia sided with the majority, but mocked the decision as "this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents."

"Is it harassment, one wonders," he wrote in his comment on the decision, "for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions? Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at "reproductive health care facilit[ies]," of course) for so vague an offense as "follow[ing] and har­ass[ing]."

Those quiet and polite "conversations," according to the National Abortion Federation have included:

  • 33839 arrests for clinic blockades;
  • 6849 violent acts including:
    • 8 murders
    • 17 attempted murders
    • 428 death threats
    • 100 cases of acid thrown on workers or those entering clinics
    • 42 bombings
    • 181 arson incidents
    • 1495 acts of vandalism
    • 663 anthrax/bioterrorism threats
    • 4 kidnappings
    • 399 invasions of buildings
    • 495 acts of trespassing.

In its narrow view of "limited interpretation" the Libertarian-leaning Court put free speech over public safety, which, historically, has been why the court has seen fit to restrict protestors of all stripes to designated areas of a public space.

Why is a health clinic unique in its restrictions on such First Amendment "conversation?" An unintended casualty of the ruling may be challenges to the safe space in front of courthouses and government buildings across America, national political conventions, protests of groups like the Westboro Baptist Church encroaching on soldiers' funerals, no fly zones around the rebuilt World Trade Center, and even at the Supreme Court itself.

The Value of the Far Right of the Bench

The physical makeup of the country is changing, and the 1 percent white male minority that has ruled this country for much of its history is fighting that change tooth-and-nail.

Bush I & II appointments have been very critical to the success of the 1 percent because they are gutting large sections of social justice and social safety net law without having to answer to a voter.

If voters turn back the Tea Party over the next few elections, the lifetime appointments of the SCOTUS still are a powerful tool to derail or dismantle everything from immigration reform to a living wage.

A Different SCOTUS

In its prior incarnations, the Supreme Court has taken its weeks and months to deliberate on the issues brought before it to consider the broad ramifications of its rulings. The court has leaned to the right and the left at times.

What the SCOTUS historically has not engaged in since the days of the Robber Barons, though, seems to be pattern and practice of the Roberts SCOTUS: Libertarian pro-corporate, anti-government, anti-citizen rulings that serve the most narrow and wealthy of interests.

Those with the check books, secret conclaves, and frequent fundraisers are securing the white male 'little "c" christian power that these self-same billionaires' fathers and grandfathers used to rule America from the dawn of the Industrial Age until their self-inflicted demise after the Great Depression and the New Deal.

My shiny two.