Revolution #95, July 15, 2007

Roberts Court Tears Up Foundational Norms in the U.S. Legal System

Speaking of the first term of the John Roberts’ Supreme Court, liberal Supreme Court Justice Stephen Breyer said: “It is not often in the law that so few have so quickly changed so much.”

While Bush’s legislative agenda is stalled, and the quagmire deepens in Iraq, the new Supreme Court--stacked with Bush’s reactionaries--is tearing up long established and fundamental things about how U.S. society has been run.

Abortion (Gonzales v. Carhart and Gonzales v. Planned Parenthood)

In this ruling, the Supreme Court upheld a federal ban on an abortion procedure known as “intact dilation and extraction.” This rare procedure is generally done when something goes very wrong with the pregnancy, or when a doctor decides this is the safest method of abortion for a woman with health risks. For the 2,200 women a year who need it, the availability of this procedure could be literally a life-saver. Taking this crucial option away was very bad in its own right. But the Supreme Court decision went further and, in deciding the case, changed how the law is understood in an ominous way.

Previous Court decisions have emphasized the woman’s right to make decisions concerning her own life and health. Now the Court has put much more emphasis on protecting the life of the fetus. It took out provisions for the woman’s health and provided exceptions only in very extreme cases, to save the pregnant woman’s life.

The ruling also implied that abortion causes women emotional harm, substituting cruel pseudo-science that claims a woman who has an abortion might “come to regret their choice to abort the infant life they once created and sustained.” The majority of the highest court in the land accepted this “evidence" from affidavits filed by the so-called “Justice Foundation”--a right-wing Christian group.

Justice Ruth Bader Ginsburg described the hostility to women’s right to abortion on the Court as “not concealed” and “alarming.” She pointed out that in the logic of this decision, Congress could pass a law equating abortions with “infanticide” (the killing of a child) and the Court could rule in its favor (See “The Deadly--and Patriarchal--Logic of the U.S. Supreme Court’s Decision,” Revolution #90, May 27, 2007).

Restricting a Person’s Ability to File For Pay Discrimination (Ledbetter v. Goodyear)

Lilly M. Ledbetter worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. Despite years of obvious pay discrimination the Court held she had no right to sue Goodyear. According to the court a person must sue within 180 days of the alleged act of discrimination. This will make it impossible for many people to sue their employers for discrimination because such issues are often not discovered until years later.

Restricting Free Speech for High School Students (Morse v. Frederick)

Joseph Frederick, a high school student with a sense of humor in Juneau, Alaska, held a banner reading “Bong Hits for Jesus” as the Olympic Torch went by his school on the way to the 2002 Winter Olympics in Salt Lake City. The court held that the school principal had the right to suspend Frederick. This case gutted a precedent set in the famous case of Tinker v. Des Moines (1969) which held that high school students had a right to free speech and could wear black armbands to protest the Vietnam War.

The decision declared that part of a school's educational mission is "to educate students about the dangers of illegal drugs and to discourage their use" and based on these concerns, the opinion concluded that the principal's actions were motivated by a "serious and palpable" danger of drug abuse. Although the Court’s ruling justified restricting free speech specifically in relation to advocating drug use, the logic of the court could be used to restrict the right of youth to free speech in other areas deemed part of a school’s mission.

Breaking Down the Separation of Church and State (Hein v. Freedom From Religion Foundation)

The Freedom From Religion Foundation, a non-profit group, sued the government to oppose the Faith-Based Initiative program, since that program violates the first amendment’s prohibition on government support for religious institutions. The Court decided that group didn’t have standing to sue the government. Previously the Court had held in the case of Flast v. Cohen (1968) that the issue of church/state separation was so important that any citizen could sue on this issue. The Court sidestepped directly overturning Flast v. Cohen by arguing that since the Faith-Based Initiative was not a law created by Congress but an Executive Act, Flast didn’t apply. Justices Scalia and Thomas wrote a separate opinion where they argued for overturning the Flast decision, saying that it was “an inkblot on our jurisprudence.”

Death Penalty and Right to Appeal

This case upheld a judge’s decision dismissing a juror in a death penalty case merely because he voiced some ambivalence in how the death penalty is applied. The juror in question said six times under questioning that he believed in the death penalty and would apply it as instructed by the court. But, because he expressed a belief that the death penalty shouldn’t be used “ten times a week,” the judge in the case ruled that the juror was “substantially impaired” and could not serve on the jury. The Supreme Court overturned a lower court ruling, which had overruled the judge’s decision. This decision gives prosecutors the ability to pack juries with only those who express enthusiastic support, without any reservations, for application of the death penalty.

In another outrageous ruling, the Court threw out an appeal by a man serving a 15-year-to-life sentence who had been misinformed by the judge in the case that he had 18 days to file an appeal, instead of the 14 days in the federal statute. Even though the man filed his appeal within the time limit set by the judge, the Court ruled that he had no right to challenge anything in his trial. In other words, even when the defendant did exactly what the judge told him to do, the Court said that he had no right to appeal any injustices in his case.

Protecting Business Interests

This Supreme Court term was so pro–big business that Robin Conrad of the U.S. Chamber of Commerce remarked, "It's our best Supreme Court term ever." In Philip Morris v. Williams, the Supreme Court overturned a jury’s award of $97 million in punitive damages to the family of a man who died of lung cancer. In another case, Federal Election Commission v. Wisconsin Right to Life, it ruled that corporate “soft-money” advertisements could air close to elections overturning a key provision of a federal campaign finance bill. It overturned a rule dating back to 1911 that prevented companies from conspiring with retailers to set prices. It also made it more difficult for shareholders to sue companies and executives suspected of fraud.

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