With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.
Right Wing Watch is reporting on the Right’s reaction. One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:
The current Supreme Court is a liberal, judicial activist court. Obama could make it even more of a far-left judicial activist court, for a long time to come …
Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face. In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.
But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.
In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency. For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench. Unfortunately, extreme Right Wing ideology trumped the rule of law.
Voting rights have also come under attack. The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote. This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars. Indiana was unable to identify a single case of in-person voter fraud occurring in its history. That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.
Even our very access to the courts has come under attack from the “liberal” Supreme Court.
Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse. Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued. A jury found that she had been illegally discriminated against. Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.
The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications. To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.
Keith Bowles was yet another victim denied his day in court. After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal. Unbeknownst to him, the rules really gave him only 14 days. So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late. In so doing, the Court majority overruled clear and principled precedent that protected people in his situation. In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”
The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror. The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees. The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator. Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4. One more hard-right justice on the Court, and the decision would likely have gone the other way.
That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.
It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan. Our nation cannot afford anything less.