What Is Judicial Activism? Just Watch The Conservative Supreme Court Kiss Corporate Ass and You'll Know - How a Corporatist Supreme Court Cabal Joined Forces With Right Wing and Kochs to Quietly Sell Out Our Democracy
Bill Watterson is Mark Twain--with a drawing pen. He is a master cartoonist, but also a sharp-witted observer of the absurd, with an impish sense of humor. From 1985-1995, Watterson penned "Calvin and Hobbes," the truly marvelous comic strip that featured six-year-old Calvin and his stuffed tiger Hobbes. In Calvin's inventive and iconoclastic mind, Hobbes was a genuine tiger (and his best friend) and they shared boundless adventures that challenged conventional thinking and defied authority, often crashing right through the prescribed social order of the 'real' world.
A recurring theme in the strip was a two-player baseball competition in which both the kid and the tiger simply made up the rules as they went. In one strip, Calvin has hit the ball thrown by Hobbes, and he's scampering toward home plate:
Calvin: Ha Ha! A home run!
Hobbes: You didn't touch all the bases!
Calvin: I did, too.
Hobbes: No, you didn't. You didn't touch seventh base.
Calvin: Yes, I did! I touched the water barrel right after the front porch.
Hobbes: That's not seventh base. That's twelfth base!
Calvin: I thought the garage door was twelfth.
Hobbes: The garage door is twenty-third base. You touched them all out of order, and you didn't touch the secret base.
Calvin: The secret base?? What's the secret base?!
Hobbes: I can't tell you. It's a secret.
That exchange between a six-year-old and a stuffed tiger pretty well sums up the nonsensical political gamesmanship being played out today by the five-man lineup of corporatists on the Supreme Court: Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. They are on an unrestrained ideological tear, making up their own rules to score big points for corporate power. Reasoning? Try twenty-third base! Precedent? Throw it out! History? Rewrite it! The Constitution? Slide by it! Judicial restraint? Only for liberals! Logic? That's a secret! The rule of law? The law is us!
Only, this isn't a game. Barely six years into Roberts' tenure, he and his narrow majority have thoroughly politicized the Court. The one branch of our national government that was intentionally designed by the Founders to set the rule of law above politics has been turned into another political front group to advance corporate rule. The Constitution granted life tenure to the justices specifically so they could feel free to stand up to wealthy wrongdoers--particularly those avaricious business schemers who wanted to endanger the people's rule by establishing, as Jefferson put it, "the aristocracy of our moneyed corporations."
Hiding under robes
"Leveling the playing field can sound like a good thing. But in a democracy, campaigning for office is not a game." --Chief Justice John Roberts, fumbling a sports metaphor in a June ruling that does, indeed, tilt the political field to assure that corporate-backed players win the crucial money game.
In case after case, the five hard-core Republicans of the Roberts Court have been chopping furiously at the hard-earned legal rights of workers, consumers, voters, and others who dare to challenge the power of big business elites to reign over us, both politically and economically. There has been way too little public attention focused on (much less a sustained political challenge to) what has become a spectacular abuse of government power. A survey last year by the Pew Center found that nearly three-fourths of Americans have no idea who John Roberts is. Eight percent named Thurgood Marshall as the chief justice (and I certainly wish he was, even though he's been dead for 18 years).
It's not that the public is stupid, but that the Court deliberately hides itself. No C-SPAN or other television cameras are allowed, even in the relatively few times the justices convene in public session. The bulk of the justices' official policy-making work takes place behind closed doors. They practically never have press conferences or give interviews, and some have even refused to let the media cover their 'public' speeches.
Curiously, mass media outlets show little journalistic curiosity about the doings of this tiny but enormously powerful third branch of our national government. If Obama so much as sneezes, newscasters and pundits are all over it, and hordes of reporters and analysts constantly poke into the back rooms and dark corridors of Congress. Yet, nine black-robed mandarins--with the power to overturn the decisions of the two elected branches, as well as decisions by state governments and even of the voting public-- sit in splendid obscurity in an imposing, white marble bunker, periodically tossing out rulings that essentially make law.
When the mass media do cover the Court (usually only when a new justice is named or a major edict is handed down), the reporting is superficial, even lazy. Two months ago, for example, the New York Times ran an"analysis" of decisions in the 2010-2011 term, concluding that the hallmark of the Roberts Court is "defending free speech." Never mind that it is corporate speech that they have radically enhanced, to the detriment of your voice and mine. But the Times didn't probe.
It's time for you and me to probe, because the Roberts-Alito-Kennedy-Scalia-Thomas cabal is openly aligning itself with the all-out political push by such far-right billionaires as the Koch brothers to impose a corporate plutocracy over America (see February 2010 and June 2011 Lowdowns). "Come on, Hightower," you might say, "such learned jurists wouldn't be engaged in such extremism." Oh? Remember Bush v. Gore in December 2000? In that case, five justices abruptly shoved their way into totally unprecedented, overtly partisan territory to dictate who would be America's president. With no need to do so, they imperiously interrupted a recount of the people's vote in Florida, usurped jurisdiction from state courts, invented a legal theory out of thin air, and arbitrarily seated corporate-favorite George W in the White House.
This was so far beyond the bounds of the Court's role, such an arrogant act of magisterial extremism, that none of the usurpers were willing to claim the decision as their own. None put their name on the opinion. Also, in an extraordinary confession, the opinion itself concedes its legal shoddiness by saying that it's a one-of-a-kind decision that should not be cited as a precedent for any other case. Tellingly, it hasn't been.
Eleven years later, three of those five Bush v. Gore judicial extremists--Kennedy, Scalia, and Thomas--are still on the bench, forming a solid core of today's corporate cabal.
Also, while it's not widely known, Roberts himself was a key member of Bush's election-stealing team in Florida. A protege of Republican attack dog Kenneth Starr, Roberts was a corporate lawyer in Washington at the time (becoming a multimillionaire by helping such clients as Big Coal defend the abominable min-ing method of mountaintop removal). He was flown to Florida to polish legal briefs and do a dress rehearsal to prepare Bush's lead lawyer for getting the Supremes to seize the election for the Republican.
In 2005, George W returned the favor by entrust- ing the top spot on the nation's highest Court to this radical corporate activist. With the addition of Alito in 2006, Corporate America had its slim ideological majority in place.
Not only did pro-corporate decisions begin to flow, but the cabal also became brazen about its alliance with the right-wing Republican network that's now pushing aggressively in Washington, state capitals, and all of America's courts to rewrite laws so an "aristocracy of our moneyed corporations" can rise above the American people's democratic rights and authority. Jeff Shesol, author of Supreme Power (a history of FDR's fight with the Court), wrote a June New York Times op-ed about this "flurry of judicial fraternization," warning that it threatens to destroy the Court's credibility as an impartial guardian of the rule of law. Here's a sampling of their fraternization:
In 2010, Scalia was a featured participant in the Koch brothers' annual political retreat, joining assorted billionaires and GOP operatives as they plotted strategy and raised money for defeating Democrats. And this January, when tea party Republicans marched triumphantly into Washington to take their seats in Congress, they were welcomed by Scalia, who presented a constitutional tutorial to the newly minted partisans.
In 2008 and 2010, Alito lent his supreme prestige to the fund-raising efforts of the right-wing, anti-Democrat mag, American Spectator. He served as chief draw and keynote speaker at the group's 2008 fund-raiser, where he regaled wealthy funders with Joe Biden jokes. In 2009, he headlined a fundraiser for the Koch-backed Intercollegiate Studies Institute(which boasts the right-wing video trickster and criminal activist James O'Keefe among its alumnae). Also, in 2010, Alito was the chief sparklie at a high-dollar event for the Koch-funded Manhattan Institute.
Thomas, too, has put his judicial imprimatur on the Koch boys' annual plutocratic political gathering. He addressed their 2008 getaway at a Palm Springs resort, apparently enjoying four days there on the tab of the Koch-funded Federalist Society. He also is closely tied to the Heritage Foundation, which is richly financed by the Kochs. In 2009, he was the featured draw at a fundraiser for the group, which often takes part in Supreme Court cases--and which employed Thomas' wife, Ginny, from 2003-2007, paying her $686,000 that the justice "inadvertently omitted" from his financial disclosure filings. In addition, Thomas is corruptly entangled with Dallas real estate billionaire and right-wing political funder Harlan Crow. Even though Crow's financial and political interests are directly affected by the high court's rulings, Thomas has been injudiciously accepting a steady flow of gifts from the tycoon, including: a $175,000 donation from Crow to a Georgia library project dedicated to Thomas; a $2.8 million gift for an historic preservation project being developed under Thomas' supervision near his childhood home; and a $500,000 donation to Thomas' wife, Ginny, last year so she could start a tea party lobbying and political group (which, by the way, takes an aggressive partisan stance on legal questions that will soon come up for Justice Thomas' consideration, including Obama's health care law).
Good grief! Is there no code of ethics outlawing such rank conflicts of interest for federal judges? Yes. But, conveniently, Supreme Court justices have been exempted from the code.
Soiling clean elections
The Lowdown has periodically exposed the Court's slaphappy extremism and its make-up-the-rules activism as found in such now-infamous cases as Citizens United (see Sept. 2009, March 2010, and Feb. 2011 issues). In that 2010 ruling, using contorted language that even Orwell could not have dreamed up, the five actually re-wrote the laws of nature, decreeing that lifeless corporate entities are "persons" with a constitutional right to "speak" in every American election. These necromancers then invented a "voice" for corporate-speak: money. They ruled that top executives of these inanimate for-profit constructs are entitled to spend unlimited sums of corporate cash (money that belongs to shareholders, not to them) to run secretly funded campaigns for or against anyone they choose.
Interestingly, none in this bloc of five has ever run for office, much less won. So they have no real- life experience with the way big money suffocates democracy, both in politics and in the close confines of government decision-making. Worse, all of them express an uncommonly deep contempt for a truly democratic process, in which the people would reign over corporations, allowing grassroots human endeavor and ideas to trump the blunt force of money.
They really should talk to their shrinks about this psychosis. But, meanwhile, they keep working out their contempt on us, not only by jacking up the clout of corporate players, but also by slapping down grassroots efforts to give people power a path around the ever-rising money barrier:
2006. Roberts, Alito, Kennedy, Scalia, and Thomas vote to overturn limits that the people of Vermont placed on campaign contributions.
2007. The same five throw out Wisconsin's effort to keep corporations from swamping their elections with last-minute ad blitzes.
2008. The same five strike down the "millionaire's amendment," a part of the McCain-Feingold election finance reform passed by Congress in 2002; this provision had allowed candidates who were confronted by self-financed millionaire opponents to raise more money than otherwise allowed in order to level the playing field.
June 27, 2011. The same five kill the "matching funds" provision of Arizona's Citizens Clean Elections Act--a provision that was key to making the state's extremely popular and successful public financing system work.
The Arizona ruling was a stinging slap in the face to the conscientious citizens of that state. Arizonans have labored diligently to free their politics from the corruption of big money, while also opening the possibility of holding office to those who don't have piles of money or don't want to be beholden to those who do. Nauseated in the 1990s by an epidemic of gubernatorial and legislative scandals, the people themselves launched a grassroots initiative to get the democracy-destroying corrosion of special-interest political contributions out of their elections. In 1998, Arizona voters emphatically said, "yes."
Their Clean Elections Act established a voluntary public financing system that gave office-seekers of all parties and all economic classes an alternative, no-strings-attached way to finance their campaigns. By agreeing not to take any special interest contributions, these candidates received a fixed sum of public money--enough for them to be competitive under normal campaign conditions and have their voices heard. However, abnormal happens. So, if clean-running contenders found their voices being drowned out by a flood of special interest cash flowing to a rival, the "matching funds" provision allowed them to get a limited level of extra money from the public fund to help counter the free-spending opponent's unfair advantage.
It is this matching mechanism that the mammon-worshipping Supremes went after. Why? Because it works. Former Governor Janet Napolitano, for example, says she could not have even considered running for Arizona's top office without the availability of this funding alternative, but with it she won two terms. A majority of all parties' candidates use the Clean law, and it is enormously popular with the public.
But the corporate powers hate, hate, hate it, for it diminishes their political control. Having failed again and again to repeal it at the state level, they turned to the vipers nest of Koch-funded, right-wing policy fronts to find a way for the federal courts to inter- vene and do their dirty work. With support from the American Legislative Exchange Council (see Feb. 2011 Lowdown) and the Institute for Justice, this clique developed a perversely-novel theory of law, framed it into a lawsuit, and had the Republican leader of the state house, John McComish, sign on as plaintiff.
The Roberts quintet happily swallowed the perverse legal theory fed to them in the case, known as Arizona Free Enterprise Club v. Bennett. Turning both common sense and the Constitution topsy-turvy, the Court found--get this--that Arizona's matching provision gives cash-poor candidates an unfair advantage over those flush with money. Huh?
Well, explained the five, money speaks in politics, and the speech of the rich is inhibited if they know that their money-raising can result in "counterspeech" from opponents. Corporatespeak, good; counterspeak, bad. In a twisted and overwrought opinion for the majority, Alito wrote that public matching funds impose an "unprecedented penalty on any candidate who robustly exercises [the First Amendment right to buy an election]." Okay, I edited-in that last bit, but that's precisely what the Court's majority (and the Koch brothers) are actually saying. Not only are they freeing big money to shout as loud as it wants in our elections, but the Court has now allowed the money interests to quash the political speech of others. The good news is that Roberts & Company only nixed the matching provision, not the Clean Election Act itself. At least not yet. As Roberts wrote: "We do not today call into question the wisdom of public financing."
Stop them before they rule again
These guys are a clear and present danger to our democratic rights, not only in election cases, but also in a rising flood of upside-down economic rulings--including their shameful June decision involving Walmart's discrimination against women employees and their ridiculous ruling in April allowing AT&T to defraud customers. Both of these court opinions eviscerate the people's right to hold corporations accountable by filing class-action lawsuits. The Roberts Five are not objective and reasoned judges. They are crass political operatives disguised in robes of authority, deliberately contorting the law to transfer huge chunks of the people's power to corporate suites.
Roberts. Alito. Kennedy. Scalia. Thomas.
Memorize these names, for they are thieves. Put their names and deeds into every political discussion. Spread their infamy. Distribute wanted posters! Make bumper stickers. Send emails and letters-to-the-editor. Chastise Republicans for coddling them, Democrats for doing nothing, and tea partiers for giving these ultimate Big Government authoritarians a pass. It's up to us.
One of the big generalizations about the Constitution is that it exists in large part to protect the people from tyrannical government (some people say just "from government". That is an erroneous interpretation. Government itself must exists to act as a kind of referee). The only function of the Constitution is to protect citizens from powerful special interests. The right-wing Roberts Court does does see it that way. The conservatives on the Court - Roberts. Alito. Kennedy. Scalia. Thomas. - think they should be looking out for the interests of corporations.
