Conservative judges invent their own laws as the neoconservative propaganda machine blasts away at liberals it accuses of lacking proper respect for the Constitution.
The Orwell Court
Wisconsin is fresh off a Supreme Court campaign in which the neoconservative candidate and his backers repeatedly accused their opponent of being a "liberal judge who legislates from the bench." Meanwhile, on the national stage, John McCain and the GOP are repeating the GOP fairy tale about the deep reverence conservative judges have for the Constitution as originally written---unlike liberal judges who legislate from the bench.
History shows otherwise.
Conservative Supreme Court judges have utterly transformed America, making it more authoritarian, racist, and beholden to corporations by doing exactly what they accuse liberals of doing: legislating from the bench.
In fact, conservative judges are responsible for the two decisions most scholars agree are the worst Supreme Court decisions ever. The 1857 Dred Scott decision proclaimed blacks as "unfit to associate with the white race…and so far inferior that they (have) no rights." In Bush v. Gore, five Republican appointees ordered the vote recount stopped, showing disdain for the will of the voters. They twisted the law and even ignored their own judicial philosophies to rationalize a very partisan decision to make George Bush President.
Our Founding Fathers astutely recognized that corporate power poses a threat to democracy, and kept corporations on a short leash. Corporations had charters that limited them to commercial activities and required them to serve the public interest. Conservative Supreme Court rulings changed that, yanking we the people from the driver’s seat, locking us in the trunk, and giving the keys to corporate CEOs.
Consider what they did to the Fourteenth amendment, enacted in 1868. It contains sweeping language to make all “persons” equal before the law, and was especially aimed at protecting the newly-freed slaves and granting them full citizenship. Conservative justices refused to enforce the amendment, ruling against blacks in 14 of the first 15 cases. By 1896, they had ruled the federal government couldn’t intervene when a state would not prosecute whites who massacred blacks, that whites could be forced to discriminate against blacks, and that “separate but equal facilities” (code for separate and unequal) are permissible, thereby giving Jim Crow laws a stamp of approval.
But when corporate lawyers argued that corporations are “persons” entitled to Fourteenth amendment protections, conservative justices listened eagerly. Conservatives granted to corporations rights clearly intended for human beings only, allowing corporations to avoid taxation and regulation. At the same time, the Court often allowed corporations to not be “persons” when that was convenient for them to avoid responsibility for their actions.
Meanwhile, the liberal Warren Court, so often maligned by conservatives, actually enforced the Constitution, overturning despicable laws that kept blacks segregated in grossly-underfunded schools and criminalized interracial marriage. A majority of the justices on the Warren Court also supported free speech and other rights for those challenging government actions, as our Founding Fathers intended.
The Roberts Court continues the conservative trend of favoring corporate over individual rights. Typical are the decisions in two free speech cases made one day last year. In the first, the court allowed schools to censor student speech, even off school property. In the other, the court defended the so-called “free speech” rights of corporations to pour unlimited amounts of cash into certain types of political ads—without disclosing the source of the donations. Some would call this type of “free speech” thinly-veiled bribes to candidates.
Our Founding Fathers would cringe to see how many conservative judges have been actively battling freedom, justice, and equality.
May 20, 2008
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Steve Frederick is a freelance writer who lives in Skokie, Illinois. He is a graduate of the La Follette School of Public Policy at the University of Wisconsin-Madison and is the former Director of the Chicago Area Committee on Occupational Safety and Health.