[Mb-civic] Right-Wing Judicial Activism

[Mha Atma Khalsa]

Today's commentary:
http://www.zmag.org/sustainers/content/2005-10/13parenti.cfm

==================================

ZNet Commentary
Right-Wing Judicial Activism October 13, 2005
By Michael Parenti 

Appearing before the Senate Judiciary Committee as
nominee for Chief
Justice of the Supreme Court, John Roberts assured the
senators that he
would not be one of those noisome activist judges who
inject their
personal values into court decisions. 

He would behave like "an umpire calling balls and
strikes." With a
completely open mind, he would judge each case solely
on its own merits,
with only the Constitution to guide him, he said. 

None of the senators doubled over with laughter.

A fortnight later, while George Bush was introducing
another Court
nominee---his right-wing Jesus-freak crony Harriet
Miers---he prattled on
about his "judicial philosophy" and how he wanted
jurists to be "strict
constructionists" who cleave close to the
Constitution, as opposed to
loose constructionist liberals who use the Court to
advance their
ideological agenda. 

It is time to inject some reality into this issue. In
fact, through most
of its history the Supreme Court has engaged in the
wildest conservative 
judicial activism in defense of privileged groups. 

Be it for slavery or segregation, child labor or the
sixteen-hour workday,
state sedition laws or assaults on the First
Amendment---rightist judicial
activists have shown an infernal agility in stretching
and bending the
Constitution to serve every inequity and iniquity. 

Right to the eve of the Civil War, for instance, the
Supreme Court
asserted the primacy of property rights in slaves,
rejecting all slave
petitions for freedom. In the famous Dred Scott v.
Sandford (1857), the
Court concluded that, be they slave or free, Blacks
were a "subordinate
and inferior class of beings" without constitutional
rights. 

Thus did reactionary judicial activists---some of them
slaveholders---spin
racist precepts out of thin air to give a
constitutional gloss to their
beloved slavocracy.

When the federal government wanted to establish
national banks, or give
away half the country to speculators, or subsidize
industries, or set up
commissions that fixed prices and interest rates for
large manufacturers
and banks, or imprison dissenters who denounced war
and capitalism, or use
the U.S. Army to shoot workers and break strikes, or
have Marines kill
people in Central America---the Supreme Court's
conservative activists
twisted the Constitution in every conceivable way to
justify  these acts.
So much for "strict construction."

But when the federal or state governments sought to
limit workday hours,
set minimum wage or occupational safety standards,
ensure the safety of
consumer products, or guarantee the right of
collective bargaining, then
the Court ruled that ours was a limited form of
government that could not
tamper with property rights and could not deprive
owner and worker of
"freedom of contract."

The Fourteenth Amendment, adopted in 1868 ostensibly
to establish full
citizenship for African Americans, says that no state
can "deprive any
person of life, liberty, or property, without due
process of law," nor
deny any person "equal protection of the laws." 

In another act of pure judicial invention, a
conservative dominated Court
decided that "person" really meant "corporation";
therefore the Fourteenth
Amendment protected business conglomerates from
regulation by the states. 

To this day, corporations have legal standing as
"persons" thanks to
conservative judicial activism. 

By 1920, pro-business federal courts had struck down
roughly three hundred
labor laws passed by state legislatures to ease
inhumane working
conditions. 

Between 1880 and 1931 the courts issued more than
1,800 injunctions to
suppress labor strikes. No trace of conservative
restraint during those
many years.

When Congress outlawed child labor or passed other
social reforms,
conservative jurists declared such laws to be
violations of the Tenth
Amendment. The Tenth Amendment says that powers not
delegated to the
federal government are reserved to the states or the
people. So Congress
could not act. 

But, when states passed social-welfare legislation,
the Court's right-wing
activists said such laws violated "substantive due
process" (a totally
fabricated oxymoron) under the Fourteenth Amendment.
So the state
legislatures could not act.

Thus for more than fifty years, the justices used the
Tenth Amendment to
stop federal reforms initiated under the Fourteenth
Amendment, and the
Fourteenth to stymie state reforms initiated under the
Tenth. It's hard to
get more brazenly activist than that. 

A conservative Supreme Court produced Plessy v.
Ferguson (1896), another
inventive reading of the Fourteenth Amendment's equal
protection clause.
Plessy confected the "separate but equal" doctrine,
claiming that the
forced separation of Blacks from Whites did not impute
inferiority as long
as facilities were equal (which they rarely were). For
some seventy years,
this judicial fabrication buttressed racial
segregation. 

Convinced that they too were persons, women began to
argue that the "due
process" clauses of the Fourteenth Amendment (applying
to state
governments) and the Fifth Amendment (applying to the
federal government)
disallowed the voting prohibitions imposed on women by
state and federal
authorities.

 But in Minor v. Happersett (1875), the conservative
Court fashioned
 another devilishly contorted interpretation: true,
women were citizens
 but citizenship did not necessarily confer a
citizen's right to suffrage.
 In other words,  "due process," and "equal
protection" applied to such
 "persons" as business corporations but not to women
or people of African
 descent. 

At times, presidents place themselves and their
associates above
accountability by claiming that the separation of
powers gives them an
inherent right of "executive privilege." Executive
privilege has been used
by the White House to withhold information on
undeclared wars, illegal
campaign funds, Supreme Court nominations, burglaries
(Watergate), insider
trading (by Bush and Cheney), and White House
collusion with corporate
lobbyists.

But the concept of executive privilege (i.e.
unaccountable executive
secrecy) exists nowhere in the Constitution or any
law. Yet the wild-eyed
right-wing activists on the Supreme Court trumpet
executive privilege,
deciding out of thin air that a "presumptive
privilege" for withholding
information belongs to the president.

Bush just recently talked about "how important it is
for us to guard
executive privilege in order for there to be crisp
decision making in the
White House." Crisp? How can Bush represent himself as
a "strict
constructionist" while making claim to a wholly
extra-constitutional
juridical fiction known as "executive privilege"?

With staggering audacity, the Court's rightist
judicial activists have
decided that states cannot prohibit corporations from
spending unlimited
amounts on public referenda or other elections because
such campaign
expenditures are a form of "speech" and the
Constitution guarantees
freedom of speech to such "persons" as corporations. 

In a dissenting opinion, the liberal Justice Stevens
noted, "Money is
property; it is not speech." But his conservative
colleagues preferred the
more fanciful activist interpretation. 

They further ruled that "free speech" enables rich
candidates to spend as
much as they want on their own campaigns, and rich
individuals to expend
unlimited sums in any election contest. Thus poor and
rich can both freely
compete, one in a whisper, the other in a roar. 

Right-wing judicial activism reached a frenzy point in
George W. Bush v.
Al Gore.  In a 5-to-4 decision, the conservatives
overruled the Florida
Supreme Court's order for a recount in the 2000
presidential election. The
justices argued with breathtaking contrivance that
since different Florida
counties might use different modes of tabulating
ballots, a hand recount
would violate the equal protection clause of the
Fourteenth Amendment.

By preventing a recount, the Supreme Court gave the
presidency to Bush.

In recent years these same conservative justices have
held that the
Fourteenth Amendment's equal protection clause could
not be used to stop
violence against women, or provide a more equitable
mode of property
taxes, or a more equitable distribution of funds
between rich and poor
school districts. 

But, in Bush v. Gore  they ruled that the equal
protection clause could 
be used to stop a perfectly legal ballot recount. Then
they explicitly
declared that Bush could not be considered a precedent
for other equal
protection issues. In other words, the Fourteenth
Amendment applied only
when the conservative judicial activists wanted it to,
as when stealing an
election!

We hear conservatives say that judges should not try
to "legislate from
the bench," the way liberal jurists supposedly do. But
a recent study by
Paul Gewirtz and Chad Golder of Yale University
reveals that conservative
justices like Thomas and Scalia have a far higher rate
of invalidating or
reinterpreting Congressional laws than more liberal
ones like Byers and
Ginsberg. 

By this measure, too, the conservatives are the more
activist.

In sum, the right-wing aggrandizers in black robes are
neither strict
constructionists nor balanced adjudicators. They are
unrestrained power
hustlers masquerading as sober defenders of lawful
procedure and
constitutional intent. 

If this is democracy, who needs oligarchy? 

--------

Michael Parenti's recent books include Superpatriotism
(City Lights), The
Assassination of Julius Caesar  (New Press), and The
Culture Struggle
(Seven Stories Press), all available in paperback;
also visit:
www.michaelparenti.org. 

--> If you pass this comment along to others --
periodically but not
repeatedly -- please explain that Commentaries are a
premium sent to
Sustainer Donors of Z/ZNet and that to learn more
folks can consult ZNet
at http://www.zmag.org 





		
__________________________________ 
Yahoo! Music Unlimited 
Access over 1 million songs. Try it free.
http://music.yahoo.com/unlimited/