"Judicial activism" is way too tame a phrase for what Chief Justice Roberts & Co did here. This was a coup -- a plotted overthrow to enthrone corporate political interests.
One of the great works of American political literature is Ambrose Bierce's The Devil's Dictionary, first published in 1906. From A-Z, Bierce offered about a thousand irreverent definitions of political, legal, and cultural terms, getting much closer to the truth of what the words really mean than the formal definitions you'll find in Webster's. For example, consider this stinger: "LAWFUL, adj. Compatible with the will of a judge having jurisdiction."
A century later, Bierce's elucidation of the term pretty well nails the Roberts Court, the five-man junta of Chief Justice John Roberts and his fellow black-robed corporados on the Supreme Court: Sam Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. For these extremist judicial activists, 'lawful' is whatever they will it to mean, even if their rulings defy logic, reality, the will of the people, the Founders' clear intentions, legal precedent, common sense, and any sane measure of justice.
While the executive and legislative branches of government receive constant (and often scathing) media scrutiny, the daily decrees of the judicial branch are given only sporadic and mostly superficial coverage. Yet, at the judiciary's highest level, the Roberts Court has become openly and aggressively political, deliberately rigging the scales of justice to enthrone big corporations -- the least democratic force in our society -- over the rest of us.
From behind the imposing marble walls of Washington's majestic Supreme Court building, this slim majority of five unelected, unaccountable government officials with lifelong tenure has been hurling bombs at our democracy. They've hit us with decision after decision enhancing the power of corporations at the direct expense of workers, consumers, local communities, our air and water, voters, the elderly, and... well, anyone and everyone who stands up in court to resist the rise of corporate hegemony in America.
[INTERESTING ASIDE: Teabag-wagging mad-as-hellers say that the overriding purpose of their uprising is to restore political authority to 'the people' by shrinking the intrusive power of an out-of-touch, big, bad federal government. So, where are they? You don't get bigger, badder, more intrusive, and more out of touch than having a cabal of federal judges operating from a secretive government bunker twisting the law of our land for the sole benefit of America's largest, self-serving corporations. The Supreme Court's corporate bloc has evolved into the most dangerous branch of the federal government, routinely using its arbitrary power to undermine the people's democratic authority over our country's economy, environment, and political process. But we hear not a peep about this from Tea Party leaders, or from such camp followers as Glenn Beck and Sarah Palin, and certainly not from the congressional Republican leaders who now purport to be the carriers of the teabag agenda. Curious, huh?]
The four biggest corporate hits of the Roberts Court
To comprehend the depths of this court's mendacity, we have to start with a rude fact: John Roberts lied.
When nominated by George W in 2005 to be America's top jurist, Roberts had to convince skeptical Senate Democrats that he would not be a partisan hack and/or a corporate shill who'd use his judicial gavel to hammer the law into shapes favored by the moneyed powers. The skepticism was richly deserved, for Roberts had long served corporations as a Washington lawyer (making him a millionaire) and had been a faithful GOP team player (including his legal work in 2000 to help George W wrest Florida and the presidency away from Al Gore).
Thus, to soothe the senators and charm the media, Roberts began his Senate confirmation hearing by drawing a folksy, Norman-Rockwellesque sports analogy to his judicial philosophy: "Judges are like umpires. Umpires don't make the rules. They apply them... They make sure everyone plays by the rules. But it's a limited role. Nobody ever went to a ballgame to see the umpire." He added that the distinguishing mark of his court would be one of "modesty and humility."
Roberts' entire confirmation performance was a pants-on-fire lie, but neither the Democrats nor the media called him on it. As a result, we were stuck with a chief justice who quickly forged a narrow 5-4 majority and went on a rampage of slash-and-burn judicial activism. By stomping on traditional principles of conservative jurisprudence, jettisoning clear Court precedents, perverting constitutional and statutory language, ignoring logic, distorting legislative intent, and simply making up laws, these Supremes have delivered a rash of sweeping victories to the corporate class, including these four top hits:
1. Lilly Ledbetter, 2007. For decades, Goodyear Tire & Rubber Co. had quietly been stiffing this longtime, loyal employee on her paycheck. A manager in the tire giant's Alabama plant, Ledbetter was unaware that she was being paid substantially less than her male counterparts -- a clear violation of federal anti-discrimination laws. Only learning of this maltreatment late in her career, Ledbetter sued Goodyear for the back pay she was owed. The corporation fought her all the way to the Supreme Court.
No go, ruled Roberts, Alito, Kennedy, Scalia, and Thomas. Under the statute, they sniffed, employees must file any bias suit within 180 days after the discrim-ination begins, and Ledbetter's suit had come 21 years after Goodyear started cheating her, so... tough luck, lady.
Forget heartless, this ruling was mindless. And needlessly picayune. Obviously, your honors, Ms. Ledbetter could not have filed within 180 days, since she didn't know she was being shorted! The honest way to interpret the statute would be that the 180-day limit begins after she became aware of the violation. But the Roberts Five were not looking for rationality, much less justice -- they were on a deliberate mission to rewrite and restrict the pay discrimination law for the benefit of corporate discriminators.
This decision sparked genuine public outrage, making it a flashpoint issue in the 2008 presidential race. Upon taking office in January 2009, Obama and the Democratic Congress pushed the Lilly Ledbetter Fair Pay Act into law, shoving the justices' corporate bias right back in their faces.
2. Making up law to help polluters, 2008. The catastrophic environmental and economic disaster caused in Alaska by the Exxon Valdez supertanker in 1989 resulted in a jury award of $5 billion to the local people who were harmed. The oil behemoth's battalion of lawyers, however, stalled pay- ment for years with various legal maneuvers, before getting a federal court of appeals to cut the sum in half. Still, despite the corporation's egregious malfeasance, Exxon pushed for an even sweeter deal, finally steering the case to the safe harbor of the Roberts Court.
In 2008, nearly 20 years after the disaster, another five-man majority led by Roberts slashed the damage award to $500 million, a mere tenth of the original jury assessment -- and less than two days worth of Exxon profits.
Actually, four of the justices tried to eliminate the award altogether, arguing that a corporation should not be responsible for the reckless acts of its own managers! They fell only one vote short of imposing this creative rewrite of corporate law on us. Nonetheless, the Roberts Court satisfied its impulse to legislate from the bench by dictating a new, corporate-pleasing formula for determining punitive damages under maritime law -- a formula not found in the statute and not intended by Congress -- thus making up a law to benefit polluters.
3. Binding the EPA, 2009. The fearless five took up their legislative pens once again in two cases involving the Clean Water Act. Under this law, electric power companies must use "the best technology available" to keep from harming fish and other aquatic life when they draw from the public waterways to cool their generators.
In an environmental lawsuit involving Entergy Corporation, a giant electric utility based in New Orleans, Louisiana, the RAKST quintet came out of right field to rule that the EPA should consider the cost to the power companies when evaluating "the best" environmental technologies. This generous gift to utilities was not included in the law by the legislative branch, so the five judicial branch activists thought- fully added it themselves.
Later that same year, they also diluted the Clean Water law by siding with a mining corporation named Couer Alaska. This outfit wanted to dump a waste product called "tailings" directly into lakes. The five (plus Justice Stephen Breyer this time) cheerfully decided that this pollution is okay, as long as the polluter holds an Army Corps of Engineers permit. Never mind that such dumping is expressly banned by EPA rules, the Supremes were on a roll.
4. The grandest giveaway of all, 2010. In January of last year, these five potentates of plutocracy issued a ruling that has caused a massively destructive tectonic shift in America's political process, thrusting mountains of corporate money high above the people's democratic power. The Lowdown has covered the impact and import of the now infamous Citizens United decree by the Court (see Lowdown issues September 2009 and March 2010). But it's important to add here that the Court's edict, which magically turned inanimate corporations into "persons" (with constitutionally protected electioneering 'rights' that make them politically superior to actual persons), is not only an absurd and intolerable overreach in logic, but also in process.
"Judicial activism" is way too tame a phrase for what Roberts & Company did here. This was a coup -- a plotted overthrow of the orderly judicial process in order to enthrone corporate political interests over all others.
In June 2009, the Court quietly reached into its caseload and plucked out an obscure case brought by Citizens United, a corporate-funded political front that was challenging a mundane point in federal election law. After hearing oral arguments in this ordinary case, the Roberts majority did something extraordinary: the justices arbitrarily altered the case that had been brought to them, completely rewriting Citizens United's complaint.
Instead of addressing the group's minor question, the Court issued an order for the parties to address whether unlimited and unreported sums of corporate money should be allowed in all US elections. In other words, these scoundrels in robes created their own case proposing a sweeping change in America's democratic system.
They then rushed to judgment, giving the lawyers involved only a single month to prepare arguments on this entirely new, momentous question. They also hurried the case to the front of the line, scheduling oral arguments on it in September, before the Court would normally be in session.
In January 2010, only seven months after they'd sprung their Citizens United surprise, the five issued their constitutional rewrite. It imposes their will (i.e., egos and personal ideological bias) over: (1) the clear intention of our Constitution's framers to keep corporations out of politics; (2) a century of settled congressional law banning corporate funds in elections; (3) the laws of 22 states that prohibit corporate spending in their elections; (4) many decades of the Court's own precedents affirming the wisdom of outlawing corporate electioneering cash; and (5) the overwhelming belief of the American people, that only humans, not corporations, should be election participants.
So, exercising exquisite judicial imperiousness, five judges decided that they're wiser than all of the above, unilaterally pulling off a sneak attack that, in the words of People For The American Way, amounts to the "constitutionalization of corporate political power."
The hits keep coming!
Unfortunately, the work of the Roberts Court has only begun. Corporate CEOs and their legal/political cohorts know that the scales of justice in the federal judiciary are now weighted in their favor. The selection of most judges gets almost no attention (much less opposition) from Congress, the media, and the public. This has allowed Reagan, Bush I, Clinton, and Bush II to slide hordes of corporatists onto the bench, from district courts through the Supremes. As a result, corporations are ever more inclined to run to court, where they are winning incremental and wholesale increases of corporate power over employees, environmentalists, and the rest of us.
Walmart. This retailing colossus is presently trying to weaken the ability of its mistreated workers to join together in class-action lawsuits. In the largest job bias case in US history, hundreds of thousands of women employees claim that Walmart discriminated against them in pay and promotion.
As individuals, they would not have the wherewithal to challenge one of the world's largest corporations, but by combining their grievances in a class action, they have a chance for justice. Against Walmart's vehement opposition, a court of appeals ruled last April that the ladies could band together.
In December, however, the Supremes came riding to the corporation's rescue. Seizing the case prematurely from lower courts and -- once again -- rewriting the question raised in the lawsuit, the Roberts Gang has taken jurisdiction. It will hear arguments this spring and is expected to rule in June on the fate and the future of class-action lawsuits.
AT&T. This one will affect anyone who (whether they know it or not) has a "mandatory arbitration" clause written into employment, consumer, or other contract with a corporation. These clauses restrict or even eliminate people's right to go to court if they're wronged by the corporation. A California couple alleges that AT&T bilked them on the purchase of a mobile phone, so they joined other deceived customers in a class action suit.
No, you don't, shrieked the giant's lawyers, pointing out that the arbitration clause in AT&T's phone contracts prohibits class actions. California's top state court, however, ruled against the corporation, calling its one-sided prohibition "unconscionable." So, naturally, the corporate lawyers made a mad dash to Washington, demanding that the federal justices overrule the state court. A decision is due any day now.
Clean elections. Arizona seems to have more than its share of craziness going on, but there's one area in which it has shown exemplary sanity: public financing of state elections. Despite relentless efforts by corporate lobbyists and politicos to kill the state's clean elections alternative, the law has survived since 1998. This is because it works and is widely popular, even among Republicans.
Unable to win locally, the corporate forces have now enlisted the top federal court to intervene and crush the clearly stated will of the state's people. Last November, the Roberts Court agreed to hear a challenge to Arizona's law -- an attack coming through the grossly misnamed Institute for Justice, yet another right-wing front group funded by the Koch brothers.
Even before hearing arguments on the case, the federal justices ordered that a key component of Arizona's public financing mechanism be suspended. This was in the middle of last year's state elections -- a deliberate monkey wrenching that suggests the Court will again rule against the people.
Judges gone wild
Forget modesty and humility, an aloof and arrogant judicial branch of government has arisen and become openly political. Federal judges across the country are flagrantly abusing their authority and public trust by rigging America's economic and political rules for the further enrichment of already powerful and privileged corporations. The 'umpires' have taken sides against us, and it's time to call them out.
Progressives, along with honest conservatives, must focus more on this corporate takeover of the judiciary and directly challenge the judges' service to the moneyed elites. Let me be blunt: John Roberts, the leader of the pack, has turned into an autocratic, unelected national lawmaker, imposing his political vision as the law of our land. He is doing major structural damage to America's unifying sense of fairness and justice. We can't allow him to keep hiding behind the judicial robe while he mugs us and our democratic ideals. He should be impeached.
Jim Hightower is a national radio commentator, writer, public speaker, and author of the new book, "Swim Against the Current: Even a Dead Fish Can Go With the Flow." (Wiley, March 2008) He publishes the monthly "Hightower Lowdown," co-edited by Phillip Frazer.Citizens United v. FECGeneralDemocracy SquareDemocracy SquareDemocracy Square