The rogues in robes are on the move. US Supreme Court Chief
Justice William H. Rehnquist, the leader of the pack, and the rest of the
Court's right-wing majority have launched a judicial revolution that
usurps the power of Congress as it applies to civil rights law.
In its latest decision, the Court last week overruled Congress and
held that state governments can arbitrarily deny jobs to disabled people
without violating the equal protection clause of the Constitution. The
Court's decision to gut the Americans with Disabilities Act, passed in
1990 by a huge bipartisan majority in Congress and signed into law by
former President Bush, is yet another assault on representative
democracy. Not content with short-circuiting the presidential election,
the Court has now decided that it, and not Congress, shall make the laws.
When passed more than a decade ago, the only significant opposition to
the ADA came from a band of ultra-rightists led by Jesse Helms (R-N.C.),
who mustered just seven other ultra-conservative Senate votes.
Unfortunately, the Senate's far right is now well-represented on the
Court, and the Justices did what Helms failed to do.
The ADA was the most significant civil rights legislation in decades,
allowing the tens of millions of Americans with disabilities access to
jobs, schools and buildings. The legislation was inspired by those, such
as wounded war hero Sen. Bob Dole (R-Kan.), who believed that the
barriers to the full participation of the disabled in our public life
were a clear violation of their civil rights.
In the recent case before the court, a registered nurse at the
University of Alabama hospital was demoted upon returning to work after
breast cancer treatment. Rehnquist, in helping to overrule a federal
Court of Appeals decision that the ADA prohibited such discrimination,
put cost accounting above the right to access when he wrote that it would
be "entirely rational and therefore constitutional for a state employer
to conserve scarce financial resources by hiring employees who are able
to use existing facilities."
Don't be surprised if the Court next rules that it is not necessary to
provide ramps or other facilities to wheelchair-bound people seeking
access to public buildings, or Braille numbers to aid the blind in
elevators. The Court has already gutted barriers to age discrimination in
What is at issue is the interpretation of the Fourteenth Amendment to the
Constitution extending the protection of universal civil rights to all
Americans regardless of the state in which they reside. The Fourteenth
Amendment--originally addressing the issue of racial
discrimination--explicitly empowers Congress to pass "appropriate
legislation" needed to guarantee equal protection of the law for all.
In striking down key provisions of the ADA, Rehnquist dealt a body
blow to the separation of powers, which grants to Congress sole authority
to pass federal law. Rehnquist said that the law in question was
ill-conceived because he didn't agree with Congress's evaluation of
evidence on the subject, saying it was based on "unexamined, anecdotal
accounts" that did not qualify as "legislative findings."
Given that the ADA was one of the more carefully researched pieces of
legislation ever passed by Congress, there's no reason to believe that
the Court won't throw out any law it doesn't agree with. As Justice
Stephen G. Breyer pointed out in his dissent, the ADA had been the
subject of a dozen Congressional hearings. Breyer attached a thirty-nine-page list prepared for Congress of state-by-state examples of official acts of
discrimination against the disabled. This is not enough? And, anyway,
when it suits its political purpose, the Court's right-wing majority is
quick to rule the opposite, insisting that Congress, not the courts, has
sole power to craft federal law.
Just this past weekend, Justice Antonin Scalia claimed in a speech
that those who believe that the Constitution is an evolving or living
document want to use judicial interpretation to make law. He taunted:
"You want a right to abortion? Pass a law. That's flexibility."
Yet when Congress did pass a law extending the scope of civil rights
protection to the disabled, Scalia didn't like it. He joined the 5-4
opinion overturning it.
Just a couple of questions: If the life of every fetus is sacred, why
would we want to deny that fetus, if born with disabling birth defects,
full civil rights? If one is denied a state job solely because he or she
must use a wheelchair, is that not a clear violation of the equal
protection of the laws called for in the Fourteenth Amendment?
Hypocritically, the same five Justices who struck down the ADA as a
violation of states' rights were all too willing to toss out the issue of
states' rights on the Florida election count. The lesson then and now is
that the current majority of the US Supreme Court seeks to usurp the
power of the states and the Congress when--and only when--it suits its
fiercely held ideological agenda. Sadly, civil rights are the prime
target of that agenda.
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Four hundred teenagers converged outside the four-star Hilton hotel in San Francisco, then pushed inside the plush lobby with whoops and chants.
We have the Bill of Rights and we have civil rights. Now we need a Right to Care, and it's going to take a movement to get it.
It may be legal, but it's still a coup d'état. The nomination of
Theodore B. Olson to be solicitor general, a position of such influence
that it is often referred to as "the 10th member of the Supreme Court,"
affirms that President Bush has turned the US judiciary over to the far
We can't say we weren't warned when Bush, during the campaign, named
Clarence Thomas and Antonin Scalia as his role models for future judicial
appointments. They returned the compliment by obediently bowing to the
arguments of Bush's lawyer, Olson, that abruptly stopped the vote
counting in Florida, thus handing the election to Bush.
Once in office, Bush quickly appointed three of Thomas's closest
personal and ideological buddies to head the judicial branch of the US
government. Newly minted Atty. Gen. John Ashcroft made that point when he
rushed off to Thomas's chambers to be sworn in out of the public eye. Then
came the appointment of Larry Thompson, who had defended Thomas in his
stormy confirmation hearings, as deputy attorney general. Then the pièce
de résistance: Olson.
While newspaper editorials praised the Bush Administration for its
moderate style, the often mute Thomas emerged from the shadows to
celebrate the far right's triumph. At a conservative dinner soiree,
Thomas issued a militant call to arms decrying "an overemphasis on
civility." Indeed, instead of being civil to those with whom he
disagrees, we had the unseemly spectacle of a Supreme Court Justice
calling for ideological war: "The war in which we are engaged is
cultural, not civil." He chided moderates in his own party saying he was
"deeply concerned because too many [conservatives] show timidity today
precisely when courage is demanded."
Surely he wasn't referring to the President, who has given the GOP
right wing the prize it really wanted: control of the judiciary. Clearly,
the intention is to use the powers of the state to pursue the right's
social agenda while virtually dismantling the federal government as a
force for social justice.
The choice of Olson as solicitor general seals the right wing's
seizure of power. But it could not have happened without the denigration
of the Clinton Administration and its threat to marginalize the right by
moving politics back to the center. Key to the effort to destroy Clinton
was this same Olson, who will now represent the US government in cases
involving affirmative action, the environment and women's rights. Guess
what side of those issues Olson has represented in the past? Olson, a
member of the board of directors and legal counsel for the extreme right
American Spectator magazine, was a principal figure in smearing Clinton
even before the man was elected to his first term. The magazine used $2.4
million provided by far-right billionaire Richard Mellon Scaife to dig up
dirt on Clinton in what started as Troopergate and ended up propelling
the Paula Jones case to the status of an impeachable offense. It was this
same Olson, a close friend of Kenneth Starr, who coached Jones' attorneys
before their successful request to the Supreme Court to allow a civil
suit to be heard against a sitting President.
Olson is one of those family values conservatives who evidently
believes that only wealthy women like his lawyer-talk show pundit third
wife should work. He argued unsuccessfully before the Supreme Court
against a California law that protected the jobs of women who took four
months of unpaid disability leave for pregnancy, terming it "destructive
Olson had another major failure when in 1996 he argued against women
being admitted to the publicly financed all-male Virginia Military
Institute on the grounds that the school's character would be
fundamentally altered. To which Justice Stephen Breyer tartly replied,
One of Olson's unsavory victories came when he got a federal appeals
court to rule that the affirmative action program for admissions at the
University of Texas was unconstitutional. An opponent of environmental
protection, Olson has gone to court to get sections of the Endangered
Species Act declared unconstitutional.
Now Olson and the other friends of Thomas are in a position to weigh
in heavily on future nominations to the Court, and their own names will
surely head the list. These are lawyers who have devoted not only their
professional lives but their personal political activity to reshaping the
Court as an activist vehicle to turn back the clock on the rights of
women, minorities and working people as well as to leave the environment
open to corporate exploitation.
By selecting this triumvirate to head the Justice Department, Bush has
sent the strongest of signals as to his intent to use the Court to
advance the far right's agenda. So much for moderation.
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