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Left, Right and Wrong: Divided Supreme Court Causes Concern amid Celebration

By       Message Elayne Clift     Permalink
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I once believed our democracy was enshrined by a Supreme Court whose mission was to keep the safeguards of the Constitution operational and whose members held that mission sacred. I no longer hold that belief. The politicization of the Court, with its predictable 5:4 votes, is a sign of how eroded our democracy has become.

A third of the Court's decisions in June were split 5:4 with conservative justices holding sway.   While we can't expect to have King Solomon, Gandhi, Martin Luther King, or Nelson Mandela on the bench, surely it is not asking too much to want a compassionate, constitutionally sound, non-partisan high court.   But the court's recent decisions - along with the continuing war on women, America's incipient racism, and the power of corporations and banks to dominate our nation, I feel closer than ever to the rule of despots, dictators and demagogues.

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Since the 2007 Lilly Ledbetter case in which the court prevented Ledbetter from recovering back wages after being the victim of pay discrimination for years, the court has made it harder for people to redress discrimination. In a little noticed June ruling, the court narrowed its definition of who is a "supervisor," holding that it must be a person empowered to take tangible, adverse actions against the worker, such as demotion or dismissal.

In another June case the court showed its favor for manufacturers over consumers.   Following a prior case in which the court ruled that people injured by generic drugs couldn't sue manufacturers for failing to warn patients of side effects, the court determined that makers of generic drugs couldn't be sued for defects in product design.   Thus a woman grossly disfigured by a generic pain medication lost her case because the court said federal law pre-empted recovery under state law for the failure of manufacturers to warn of product defects.

The court also sharply limited class action suits against companies, again taking prior decisions further and demonstrating their tilt toward big business.   In all of the cases just cited, the five conservative justices -- Alito, Kennedy, Scalia, Thomas and Roberts - were the majority.

The court handed down another 5:4 decision in June that went largely unnoticed as well.   It ruled that a person no longer has the right to remain silent as guaranteed by the Fifth Amendment, which states that no one "shall be compelled in any criminal case to be a witness against himself."   If a person does remain silent, that silence will be interpreted as guilt and will be used in a court of law. As lawyer and blogger Joe Wolverton put it, "Thanks to the Supreme Court's decision, that part of the Bill of Rights has been excised -- and has joined the list of so many other fundamental liberties that now lie on the scrap heap of history."

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In a more closely watched 5:4 case, the court gutted part of the landmark 1965 Voting Rights Act while challenging Congress to figure out a replacement plan to protect blacks and other minorities where discrimination still exists.   Justice Ruth Bader Ginsberg rightly noted that "throwing out the Voting Rights Act when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you're not getting wet."

Citing "outdated facts" and "progress" with respect to racial harmony since the Act was first promulgated (and updated in 2006), the justices "upended legal protections for minority voters that were a key achievement of the U.S. civil rights movement," Reuters noted. The justices seemed unaware of the continuing reality of racism, especially prevalent during elections. From poll taxes and literacy tests to more recent measures like photo IDs, early poll closings, and gerrymandering, there's no doubt that efforts to suppress minority voting persist.

What will it take for conservative justices to recognize America's continuing racism?   Did they not see how right-wing bloggers treated Rachel Jeantel as she testified in the Trayvon Martin case, or note the post to social media by Mr. Zimmerman's lawyer's daughter after enjoying a celebratory ice cream with her aggressive dad?   Are they unaware of the racist images of President Obama posted to social media that include paintings of the president as a shoeshine man, an Islamic terrorist and a chimp?  

So while we celebrate the gains made toward marriage equality, and celebrate we should, let's remember -- while marking the 50th anniversary of Martin Luther King's "I Have a Dream" speech -- that this country is far from not needing a comprehensive Voting Rights Act.   It's a country in which a Gang of Five who should know better can derail important rights guaranteed by the founding fathers.   It's a country in which our judiciary like the other two branches of government, need watching, lest they wrest from us our "inalienable rights."

It's a country with a long way to go, and a politicized court that seems hell-bent on stopping us from reaching our destination.

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Elayne Clift is a writer,lecturer, workshop leader and activist. She is senior correspondent for Women's Feature Service, columnist for the Keene (NH) Sentinel and Brattleboro (VT) Commons and a contributor to various publications internationally. (more...)

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