Supreme Court: Loyal Bushies On The Bench
Supreme Court: Loyal Bushies On The Bench
Were an opening on the Court to arise in Bush's remaining days in office, he would likely view it as an opportunity to use whatever little political capital he has left to challenge the Senate and empower his legion of "activist conservatives intent on leading a judicial counterrevolution."
|JUNE 29, 2007||by Faiz Shakir, Nico Pitney, Amanda Terkel, Satyam Khanna, and Matt Corley
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| SUPREME COURT
Loyal Bushies on the Bench
Yesterday’s 5-4 decision by the Supreme Court in a landmark racial desegregation case, which instructed local authorities “that they cannot take modest steps to bring public school students of different races together,” marked a fitting yet disappointing conclusion to the first full term of President Bush’s two Supreme Court appointees, Chief Justice John Roberts and Justice Samuel Alito. Reading his dissent from yesterday’s decision aloud in the courtroom, Justice Stephen Breyer aptly described the court’s sharp rightward slide. “It is not often in the law that so few have so quickly changed so much,” he said. The majority opinion, authored by Roberts, served as a microcosm for the traits that have quickly come to define the Court: an alarming lack of respect for precedent, irreverence for the democratic process, and disregard for constitutional history. Early in his first term, Roberts publicly proclaimed his desire to seek greater consensus, but his “fractious” Court has produced a “higher share of 5-4 decisions than any term in the last decade.” He has forced Justice Ruth Bader Ginsberg to undertake rare readings of “powerful dissents from the bench,” a sign of the concern that marks the new divisive era on the Court. Despite how out-of-the-mainstream the high court currently is, it could get even worse. “It is a conservative court, but at the same time, just barely so,” said constitutional scholar Eugene Volokh, noting the “moderating influence” of Justice Anthony Kennedy. Were an opening on the Court to arise in Bush’s remaining days in office, he would likely view it as an opportunity to use whatever little political capital he has left to challenge the Senate and empower his legion of “activist conservatives intent on leading a judicial counterrevolution.”
A FALSE PROMISE: When Bush nominated Roberts and Alito, he argued they deserved bipartisan support because they would “interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans,” and they would not “impose their preferences or priorities on the people.” Roberts went before Congress and testified that he had “no agenda.” He added, “Saying a judge is result-oriented…[is] about the worst thing you can say, because what you’re saying is you don’t apply the law.” For his part, Alito said he believed “the judiciary has to [interpret broad principles of the Constitution] in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.” (Read more of their false promises here.) Duke University law professor Erwin Chemerinsky writes today that “the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.” Alito and Roberts have shown little independence, siding with one another approximately 90 percent of the time. They have voted together in 21 of the 23 cases that have divided the Court 5-4 this year. “Prior to this year, the Court was split right down the middle in the close ideological cases — each side won about half. But this year, the hard-core conservatives won more than twice as many of the close cases, including virtually all of the most important decisions.”
THE ALITO FACTOR: The most devastating change on the Court has been the ideological shift that came with Alito’s replacement of O’Connor. “That switch almost certainly changed the outcome of many of this year’s most important decisions,” with the following results: eliminating the nearly half-century old guarantee of equal pay opportunity for all Americans, regardless of race, gender, age, ethnicity, or disability (Ledbetter); limiting Congress’s power to keep corporate money out of federal campaigns (Wisconsin Right to Life); cutting back on protections for reproductive freedom (Carhart); slamming the courthouse door on people who make technical mistakes (Bowles); cutting back on protections for people facing capital punishment by, among other things, allowing imposition of the death penalty on defendants deprived of even minimally adequate representation (Landrigan, Ayers, Uttecht); and making it impossible to challenge the Bush administration when it uses public funds to promote favored religions (Hein). While the media has focused on the fact that Alito the was the number one ally for corporate interests in a Supreme Court term that may have been the most pro-business in decades, what is most notable is Justice Alito’s hostility to the rights of workers, shareholders, and consumers.
IT COULD GET WORSE: As much as the Court has lurched to the right in the past two terms, the results could get worse if another Court opening were to occur during Bush’s remaining days in office. The oldest justices are John Paul Stevens and Ginsburg, members of the more progressive bloc. Justice Kennedy has generally been a conservative vote, “but unlike Roberts and Alito, he has maintained some degree of independence.” In yesterday’s racial desegregation decision for example, Kennedy affirmed that school districts can still take race-conscious measures to achieve diversity, though he felt the Louisville and Seattle programs focused much too exclusively on race. In an earlier decision, Kennedy sided with the majority to tell the Environmental Protection Agency to reconsider its refusal to regulate greenhouse-gas emissions from new cars and trucks. Last term, he voted with the majority in Hamdan to limit the Bush administration’s extravagant claims of executive power in denying due process to detainees. Among the issues at stake in the future are: a woman’s right to choose, the environment, voting rights, congressional power, free speech and the First Amendment, and the protection of fundamental rights and liberties. O’Connor was a key vote on many of these issues, and the new Court could soon have these protections in its crosshairs. Washington Post columnist E.J. Dionne writes, “If another conservative replaces a member of the court’s moderate-to-liberal bloc, the country will be set on a conservative course for the next decade or more, locking in today’s politics at the very moment when the electorate is running out of patience with the right.”
Yesterday, House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV) signed the “Live Earth Pledge” created by Al Gore. The pledge demands “governments to cut global warming pollution by 90 percent in developed countries and by more than half worldwide by 2050.”
MISSOURI: A “negative political climate” is stalling plans for expanding a prominent stem cell research center.
OREGON: Lawmakers approve tax breaks, with the biggest winners being businesses that will take “big steps into alternative energy.”
DISTRICT OF COLUMBIA: House lifts a ban on using tax dollars to provide clean needles to drug addicts, handing city leaders “a crucial new weapon against a severe AIDS epidemic.”
THINK PROGRESS: Flashback: President Bush awards Iraqis their sovereignty — “Let Freedom Reign!”
THINK PROGRESS: Sen. George Voinovich (R-OH) lashes out at Sean Hannity: “You’re not going to intimidate me,” then hangs up.
EAT THE PRESS: Wall Street Journal reporters “walk-out” to protest the potential sale of Dow Jones to Rupert Murdoch’s News Corporation.
SCHOOL INTEGRATION: Joint statement of nine university-based civil rights centers on Supreme Court’s desegregation ruling.
“I took ‘Mission Accomplished’ out. I was in Baghdad and I was given a draft of that thing and I just died. And I said, it’s too inclusive. And I fixed it and sent it back. They fixed the speech but not the sign.”
“There was a comment Rumsfeld made in one of those books where he claimed that he took the phrase mission accomplished out of the speech itself but that he couldn’t get the banner pulled down. That’s just wrong. I went back and looked at every draft of the speech. That phrase was never in it.”
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