As the Bush-Cheney administration enters its final 18 months, the White House is getting competition from the U.S. Supreme Court for status as greatest threat to the Constitution and the nation for which it is supposed to serve as a blueprint.
In recent weeks, the court headed by Bush-appointee John Roberts has attacked the sort of individual free speech that the Bill or Rights was written to protect while expanding the ability of corporations to warp and dominate the political debate. It has rolled back basic civil rights protections, especially in the area of public education. And it opened the way for the renewal of the sort of business combinations that the anti-trust and anti-monopoly laws of the past century were designed to prevent.
In other words, the court has gotten just about everything wrong — so wrong that its rational members have begun to express disbelief with regard to the extremism of the new activist majority.
Make no mistake: Chief Justice John Roberts and Justices Samuel Alito Jr., Antonin Scalia and Clarence Thomas are right-wing judicial activists who seek to use the court to legislate from the bench. Rather than interpreting the law, they are taking up cases with an eye toward advancing a political agenda. It is an agenda that is in conflict with established law, the will of the American people and the intentions of the founders. And when the relatively more moderate Justice Anthony Kennedy joins them to form a five-member majority on the court, Roberts and his judicial wrecking crew is free to attack the Constitution without restraint or mercy.
There is no question that the court is a reflection of the Bush-Cheney White House. The president’s appointments of Roberts and Alito have tipped the balance far to the right, making the court’s most extremist member, Scalia, a frequently definitional player.
But this court will not disband when George Bush and Dick Cheney leave Washington. Like the Iraq quagmire and the nation’s battered manufacturing sector, it is the mess that the president and vice president will leave behind. And it will continue to do damage to the Republic, as Roberts and his activist acolytes are determined to continue attacking civil rights, civil liberties and, above all, regulations on the corporate sector to which they owe their highest loyalty.
What can conscientious citizens do? First, they must recognize that the federal courts are, by design and in practice, rigidly anti-democratic institutions. Judges are not elected but appointed. And they are appointed not for terms that might make them accountable but for life. During the Progressive Era, when the anti-trust laws the court is now targeting were developed, visionary leaders such as Wisconsin Senator Robert M. La Follette, warned of the danger posed by powerful but unaccountable federal jurists who made up what progressives referred to as America’s “Judicial Oligarchy.”
Having battled with jurists who took the side of robber barons over reformers, La Follette told the American Federation of Labor in the early 1920s, “Today the actual ruler of the American people is the Supreme Court of the United States.”