Tim McMullen's Missives and Tomes

Wednesday, June 26, 2013

A Monumental Docket of Minimal Rulings from a Hopelessly Divided and Partisan Supreme Court

There should be a lot of justified rejoicing in California and around the country with the striking down of the grossly and ironically misnamed "Defense of Marriage Act" (DOMA) and allowing the striking down of Prop 8 in California to stand (due to a technicality of legal standing).

"The AC-DC Sock-It-To-Me Talkin' Blues"

I, too, am gratified that they didn't make some irrational, indefensible, contrary decision, as they so often do, but these are really just manipulative cop-outs as were their other decisions this week. Narrowing of rights and protections of the individual is the basic approach of this court. First, they sent back an affirmative action law. They didn't rule that affirmative action was unconstitutional; they simply continued to narrow the circumstances in which it can be used; i.e., they can't ignore or deny the racism and discrimination that continues in this country, but they repeatedly narrow the remedies for protection or restitution.
"The Governed's Mental Getcha'"

Yesterday, the court admitted that racial discrimination and voter suppression continue to occur; they simply said that since the original list was made so long ago, and even though Congress re-approved it only six years ago after lengthy and detailed analysis of the current situation, Congress will have to create a new list. Until the new list is created, any state, no matter how bad their record or how recently their attempts to disenfranchise minority voters, can implement any schemes they devise to prevent minorities from voting, and the only way to stop them is through a lawsuit which can take many years to move through the courts. The courts recent rulings on class-action suits makes this method even more suspect as a way of preventing voter disenfranchisement.

This is the most activist and partisan, pro-business/anti-individual court in the last fifty years, and they are absolutely aware of the political implications of their decisions. They have calculated that under this demonstrably dysfunctional Congress that new list cannot be updated, perhaps for decades, so, while declaring the Voting Rights Act constitutional, they have, for all intents and purposes rendered it useless.

On the surface they appear to have done the right thing with DOMA and Prop 8, but again, their underlying machinations are problematic. DOMA was flagrantly discriminatory and unconstitutional, and they acknowledged this fact. This will be a huge boon to same-sex couples when it comes to federal rights in states that accept same-sex marriage, but in this decision and in Prop 8, they appear to have declared this a "states-rights" issue; therefore, according to these rulings, it may still be constitutional to ban gay marriage in individual states, and it may be constitutional for those states to continue to refuse to recognize same-sex marriages from other states. As a result, the federal government may also be able to deny federal protections (pensions, tax benefits, etc.) to same-sex couples in those anti-gay states. In other words, the Feds can't make a law outlawing same sex marriage; that would be unconstitutional; but the states can ban it, and the feds could create regulations that mimic the states.

"Talking Herstory"

These "narrow" rulings on clearly national issues are disingenuous, manipulative, and cowardly. "States' rights" rulings use the same rationale that recognizes Griswold v. Connecticut and Roe v. Wade as the constitutional law of the land, a right to contraception and abortion that cannot be taken away by the government, yet they allow the individual states, as when Missouri attempted to limit birth control, or as Texas attempted last night to all but eliminate access to abortion as a practical reality, while not altering its constitutionality per se.

In many ways, this Roberts' Supreme Court majority, as bad as they are on protection of individual civil rights, is a group of scurrilous toadies when it comes to the interests of the national Chamber of Commerce and the corrupt corporate cabal that have recently overwhelmed our political system. Besides the absurd Citizens United decision that gave carte blanche to corporations to corrupt the political system, they have now banned nearly all class action suits for any kind of discrimination claims, thus taking away the only effective way for individuals to protect their rights when facing the behemoth legal structures of corporations. These are patently irrational decisions from any viewpoint except the dystopian, Ayn Rand, Arthur Laffer, Milton Friedman world in which corporations and their investors have free reign to exploit both workers and the environment at will, and the individual worker, citizen, human being is merely fodder for the personal acquisition of wealth by the corporate elite.
"The Greatest Threat"

I continue to predict that this court, whose intellectual spearhead is the hyper-hypocritical Antonin Scalia and whose pro-business mentor is Chief Justice John Roberts, in its attempts to roll back the rights and freedoms of the individual in favor of the ruling elite, will become the most overturned Supreme Court in American history.

Tim McMullen