No they haven’t yet, but it won’t be long. This Court has shown with its recent decisions that it is not the Court it claimed to be. These same men who when testifying before the Senate, claimed to respect precedence and stated that the Court had become too activist, are now disrespecting precedence and being activist. This Court is merely waiting for the right case to hang their hats on to overturn Wade.
As for the Supreme Court, we now know that the president's two nominees, Chief Justice John Roberts and Justice Samuel Alito, are exactly what many of us thought they were: activist conservatives intent on leading a judicial counterrevolution. Yesterday's 5 to 4 ruling tossing out two school desegregation plans was another milestone on the court's march to the right.
Even after he was confirmed, Roberts was talking about something other than the 5 to 4 conservative court we saw this year on case after case. In a speech at Georgetown University Law School in May 2006, Roberts rightly argued that "the rule of law is strengthened when there is greater coherence and agreement about what the law is." It's a shame this quest for broader majorities had so little bearing on the 2007 Roberts-led court.[1]
Make no mistake about it, if you are a right to choose supporter, your right to choose is about to be greatly curtailed. It is human nature to take things for granted and for many having the right to choose has been taken for granted. It will always be there. No one would dare to turn back the clocks. Yes they not only dare, but will. The frightening thing about the latest decisions is the fact that this Court has no problem vacating precedence of previous courts, while at the same time citing the very precedence they are tearing down. Does this sound familiar to anyone? (Clear Skies, No Child Left behind, etc.)
Three conservative justices, Antonin Scalia, Clarence Thomas and Anthony Kennedy, were willing to admit that in voiding this part of the law they were overturning a precedent set by the court only four years ago. But Roberts and Alito pretended to follow the earlier ruling while ripping its guts out. Scalia called this "faux judicial restraint."
"The court (and, I think, the country) loses when important precedent is overruled without good reason," Justice David H. Souter wrote for the dissenters. Exactly. But upsetting precedent, directly or indirectly, is a major goal of this new conservative majority.
As Norman Ornstein of the American Enterprise Institute noted this week in Roll Call, the issue-ad decision demonstrated "not a careful, conservative deference to Congress" but instead "a willingness by Roberts to toss aside Congress' conclusions to fit his own ideological predispositions" -- the very definition of judicial activism.[2]
The Court has gone from legal scholars to a bunch of political hacks with a political agenda that the country has lost faith in. By allowing the Court to be politicized and polarized by these right wing zealots, we have turned the clock back on all of the progressive legislation of the past 50 years. If this Court has its way integration, labor, and abortion will return to their previous pre-war status; civil war that is. While the Supreme Court has always been the protector of White male privilege and over the course of the history of this country have rendered some bad decisions (Dred Scott v. Sanford, Plessy v. Ferguson, Kelo v. City of New London, & Bush v. Gore), but atleast they were based in law, bad law, but still law. Today we have a group that is unconcerned with the rule of law and only the political agenda of the Conservative movement. A movement that has proven it is bankrupt in both ideas and support.
Those who are activist will need to dust off the protest signs and put on the marching shoes, because there is a fight brewing in this country. You cannot continue to deny people Constitution protection and not expect a backlash. As this nation transforms from white to brown, the old boy standards will try to hold back the tide of change. This Court has shown that those seeking equal protection under the law will need to seek it someplace other than in the Courts. Change will need to come not because of this Court, but in spite of this Court.
Maybe the positive in all of this is that it will force those who want progressive change to come together and wake up from their present apathetic state. We must discontinue the infighting and the separate agendas that have been the bane of progressives for the last decade. In an effort to enlarge the tent we have allowed the movement to incorporate ideas that most Americans are not yet ready to embrace. It is a shame that it will take the issue of abortion to get people off the couch, while issues of discrimination cause little more than a ripple.
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