Thursday, June 26, 2008

Supreme Court Gets It Wrong, Twice. Oops, THRICE

Historically the Supreme Court has swung between the extremes of too much or too little power. Early in its history, it could make all the pronouncements it wanted to, but had no means to enforce its decisions. For the past few decades there have been many complaints about an "activist" court or "activist" judges, meaning of course that the complainer did not like the court's decision on a particular issue. Because the court had an obvious liberal slant up until the Bush appointments, most of those charges had come from the right. Now the shoe is on the other (left?) foot and the liberals are making the charges about "activist" judges. Of course, they are not using those words, but the complaints are the same.

So at this point I get to add my complaints. The court has made three critical decisions in the last few days, two along straight 5-4 ideological lines and one 5-3 with one recused. First they decided that using capital punishment for those convicted of child rape is "cruel and unusual" punishment, second they decided that the 2nd amendment includes the right of self-defense, and third they reduced the punitive damages from the Exxon Valdez oil spill from $2.5 billion to $500 million. It is my firmly held conviction that they are wrong on all three.

A strange thing is happening here. I am actually siding with the conservative element of the court on the capital punishment decision. Don't get me wrong. I am opposed to capital punishment. I am in full agreement with the sentiment expressed by the child who asked, "Is capital punishment when we kill people to prove that killing people is wrong?" I am absolutely convinced that violence is never an appropriate response to violence. However, I am just as convinced that if we are going to use capital punishment for any crimes, the crime of child rape ought to be included. I do not understand the logic of the majority which does not see the violence of rape used against the most helpless in our society as being worthy of the highest level of punishment. It is a rare set of circumstances which has me agreeing with Justice Samuel Alito when he said, it means the death penalty would be barred

"no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."

Things are back to normal on the handgun decision. I am firmly in the camp of the liberal justices. Justice Scalia, speaking for the majority says, "the inherent right of self-defense has been central to the Second Amendment right." I've read the 2nd amendment many times. It is one of the shortest of the Bill of Rights, only 27 words, and I find nothing that guarantees a right of "self-defense." This is judicial activism at its best.

I am in complete agreement with Justice Stevens that "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

Justice Stephen Breyer, states it even more clearly:

"The majority's conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens _ namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But, self-defense alone, detached from any militia-related objective, is not the Amendment's concern.

"The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves."
And finally there is the most clear-cut example of judicial activism in favor of corporate America. Of course no one should be surprised that a Bush dominated court would protect the profits of his paymasters. The reasoning behind the decision to cut the punitive damages by 80% is that punitive damages may not exceed what the company already paid to compensate victims for economic losses. Just for the record, the $500 million amounts to four days worth of profits for Exxon.

Justice Ginsburg, in dissent, declared that the court was engaging in "lawmaking" by concluding that punitive damages may not exceed what the company already paid to compensate victims for economic losses. She concluded that this was a "new law made by the court should have been left to Congress."

I find it saddening that the oil-man president's court will not stand up for the rights of children to be safe from rape but will stand up for the rights of oil companies not to be held accountable for their actions.


Michael Westmoreland-White said...

I mostly agree with this, except that you said that the Court had "an obviously liberal slant until the Bush appointments." This is manifestly false to anyone who is an observer of the history of the Supreme Court. For MOST of its history the Court was the most conservative branch of government--filled with pro-slavery justices and pro-corporation justices. Not until FDR threatened (probably illegally) to enlarge and pack the Court did it stop its decades long record of declaring EVERY restriction on corporate power unconstitutional. If the Court had had its way, the entire New Deal would have been struck down and we'd probably have never recovered from the Great Depression.

Only for a relatively small period of time, The Warren and Burger Courts (basically the '60s and '70s) was the Court dominated by center to left Justices. That began to be "corrected" by Nixon--although some of Nixon's appointments acted with surprising independence. Neither Ford nor Carter had the opportunity to appoint any justices. Reagan began lurching the Court to the Right, although his first appointment, Sandra Day O'Conner, proved more centrist than he had expected. By the end of the first Pres. Bush's term ('92), the Court was dominated by the Right. Clinton's two centrist appointments did not shift power because they only replaced existing moderates. Bush II's appointments have solidified the Rightwing domination of the Court and have made previously conservative appointments now look centrist.

If Obama wins the presidency and gets to appoint justices, he will probably only get the chance to keep the Court from lurching further to the Right. (I am especially worried about attempts to reverse Gideon v. Wainwright and Miranda v. Arizona, as well as attempts to eviscerate labor laws and environmental laws.) If Obama is able to replace a rightwinger, it will probably not be until his 2nd term.

The focus of too many liberals on dangers to the Court begin and end with Roe v. Wade. I would not be as upset with that reversal as with many others. And Roberts and Alito are young and Thomas and Scalia are in great health. Only Kennedy (now a swing vote because of the far right views of the 4 horsemen of the apocalypse) is likely to retire soon of the conservatives.

sepherim said...

I have to admit that my perception of the liberal leaning of the court is a product of growing up in the 60s combined with a primary concern for religious liberty issues in the 70s. The Warren/Burger courts, although not liberal in all areas, frequently seemed to focus on the establishment clause of the 2nd amendment to the exclusion of the free exercise clause. This led to considerable confusion about what kinds of religious expression were and were not allowed allowed in the public arena, particularly in public schools. As one who has lived in the midst of the "put prayer back in school" crowd, I have continually and sometime heatedly maintained that no court has the power to kick God out of schools even if they wanted to. And that no court had the power to stop anyone from praying anytime, anywhere.

I do agree with your analysis and hope that a new presence in the Whitehouse will have the opportunity to help the court move back toward the center. While I myself will often take a liberal/progressive stand on most issues, I do not necessarily believe that the court should always be on my side. But the current makeup of the court really scares me. These three issues are really just the tip of the iceberg relating to the kind of damage that can be done by a reactionary majority on the highest court in the land. Thank you for your comments.