Nasty, nasty, mean old court

The New York Times has written one of the most intemperate editorials it’s been my pleasure to see in a long time, attacking the decisions emanating from the more conservative Supreme Court.  The opening will give you an idea:

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.

The editorial then goes on a mad dash through some of the more famous rulings of the last judicial term, describing them in terms, not of the actual ruling, but of the ruling’s effect.  For example:

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.

Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”

In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.

The Times‘ horror is interesting, because it so clearly demonstrates what its editors think the Supreme Court should do:  put it’s imprimatur on liberal policies.  There’s really no other way to read the editorial, because there’s nothing in it that challenges the Court’s opinions on Constitutional or other legal grounds.  They’re savaged only on possible practical effect.

This editorial silence may be because, as I pointed out a couple of weeks ago, the opinions are in fact entirely consistent with existing law and existing Constitutional interpretations.  What’s wrong with them, then, at least if you’re on the Times editorial board, is not that they were decided wrongly on legal grounds — which they weren’t — but that they were decided wrongly at a social and political level.

The Times’ position stands up to scrutiny only if you’re a judicial activist who believes that it is the Supreme Court’s job to legislate away social ills when a stubborn or foolish Legislature refuses to do so.  Those of us who are not judicial activists believe it is the Court’s responsibility to interpret the Constitution, and the legislation flowing from that Constitution, and to let the chips fall with they may.  If Americans dislike the chip falls, it is up to them nudge the existing federal representatives in Congress, or to elect an entirely new batch of federal legislators, so that Congress either changes the laws or amends the Constitution, whichever is necessary.  That is the essence of the separation of powers doctrine.


4 Responses

  1. This ties into the previous post about bad laws. The campaign finance decision coupled with the Kelo decision is bad law. I feel it in my bones. Most people sense that these decisions are wrong. When I look at the “punishment” of a Sandy Berger or the constant drips of national security secrets being published in the newspapers without any prosecutions, I do lose respect for the law as a whole. It appears to me that more and more laws are being written that lessen freedom and do not expand freedom. Even Clinton’s pardons of the FALN terrorists reinforce this view. As a committed Christian, I struggle to obey the bibles teachings about respecting the law.

  2. A truly independent Supreme Court is too much of a threat to the ambitions of a few. They can never truly tolerate a balance of powers in our government, they forever seek to unbalance it and bring it all crashing down; with the belief of course that they and theirs will rise up supreme.

  3. quoting Nietzsche (from memory):
    “when you see something falling, teach it to…fall faster!”

    How can we adapt this advice from the ur-nihilist to that little Pinch and his gang of juvenile delinquent bed wetters over there at the NY Times?

  4. Wow. You and I really think alike, Bookworm. I can see it will take an extra step or two of research concerning your site in the future, so I don’t unintentionally commit some form of innocent plagiarism.

    One thing I do think needs a mention somewhere, though, and I haven’t been diligent about it myself just yet…

    Time and again the court has ruled… in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

    We’ve been slowly conditioned to presume, whenever we hear our left-wingers drip platitudes like these, that “individuals and ideals that truly need the court’s shelter” is a phrase used to describe a broad underclass regularly oppressed, out of mindlessly repetitive social custom. Like hard-working, law-abiding ethnic minorities and/or poor people. The two problems with this, are 1) As you point out, there is a legislature elected to represent people, and if they’re going to represent anyone with an excessive beneficiality unfair to other classes, they’re going to represent the most populous classes and not the wealthy, elitist classes; and 2) it is a rare event wherein a disapproving liberal can make it part of his or her snotty lecture, exactly what principle is being violated by a not-so-liberal Supreme Court ruling, and rarer still that the liberal can specify what law is being so violated. So if the SCOTUS is deciding cases based on legal precedent and strict constitutional interpretation, how this victimizes law-abiding citizens, is at least worthy of scrutinizing visitation — for which we are well-advised not to hold our breath in anticipation, it being rarely forthcoming.

    The more I read the opinions our left-wingers and judicial activists like better, and the social consequences of that decision-making that is so overly-concerned with social consequences, the more convinced I am that the folks “truly need[ing] the court’s shelter” constitute an unmentionable class. I think it has butkus to do with economics. I think they’re talking about violent criminals.

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