QUOTE OF THE MONTH:
“In December, I agreed to extend the tax cuts for the wealthiest Americans because it was the only way I could prevent a tax hike on middle-class Americans. But we cannot afford $1 trillion worth of tax cuts for every millionaire and billionaire in our society. We can’t afford it. And I refuse to renew them again” (emphasis added).
President Barack Obama
April 13, 2011
EDITOR’S NOTE: August 2, 2011, is a critical date for President Obama and the nation. Republicans in Congress (and some Democrats) believe they can use the debt ceiling to bully President Obama into balancing the budget on the backs of middle class Americans without increasing the revenue side of the ledger through fair taxation of the wealthiest Americans, oil companies, corporations that pay no taxes, and hedge fund CEOs. Obama cannot back down from his pledge issued on April 13, 2011, when he unveiled the administration’s budget proposal. If he does back down again, as he did in December, he will lose all of the credibility he still enjoys. The nation is at a crossroads between becoming a nation of, by, and for plutocrats or a nation full of promise and opportunity for all people—not just for those rich enough to be represented by an army of lobbyists. In the meantime, anyone who wants to sign a petition authored by Vermont Senator Bernie Sanders can do so at www.sanders.senate.gov/petition. The petition simply urges shared sacrifice.
SENSE AND NONSENSE—THE LINE BETWEEN JUSTICE AND INJUSTICE
From the editor: While the conservative branch of the Roberts Supreme Court loudly claims to be “originalist” or strict “constructionist,” their decisions consistently denigrate and ignore both the constitution and previous Supreme Court decisions that do show respect for the founding fathers and the constitution. The “Gang of Five” consisting of Chief Justice John C. Roberts, Justice Samuel Alito, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Anthony Kennedy are literally rewriting the Constitution within the context of a judicial ‘Theater of the Absurd.’ This majority of five conservative judges habitually ignore the legal principle of stare decisis, which literally means “to abide by, or adhere to, decided cases.” This column will highlight a few examples of the dangerous direction now being taken by an ideological court dominated by five men posing as protectors of the rule of law. The five conservative judges now controlling the Court are heavily influenced by the arch-conservative Federalist Society, which believes in a plutocratic society dominated by a privileged “ruling” class of citizens who see themselves as “supreme” decision makers rather than protectors of justice for all.
The Perversion of a Living Constitution
Of course, the number-one game changer by this Supreme Court is Citizens United v FEC. The decision was issued in January, 2010, and was decided by a 5-4 vote. In an unusually direct reference to his colleagues on the bench, now retired Justice John Paul Stevens wrote a stinging dissent of the decision. In his dissent, he said:
“The Framers thus took it as given that corporations could be comprehensively regulated in the service of public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized (sic) the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind.”
In an interview aired on PBS Newshour on June 28, National Law Journal writer Marcia Coyle also underscored the Supreme Court’s clear pro-business bias and its absurd view that assigns free speech rights to money. Coyle observed accurately:
“I believe the Roberts Court has rejected campaign finance regulation in five cases. And it has been almost always by a 5-4 decision. You have a very clear division of how the justices view campaign finance regulation and the role of money in elections. The conservative majority sees money as speech, whereas the more liberal wing of the court sees money as money and can be regulated.”
Justice Stevens, in a fit of intellectual honesty, opines that the founding fathers, unlike the current majority of Supreme Court justices, could distinguish between a corporation and a human being. In addition, a few of his fellow fair-minded rational “liberal” justices have the audacity to view “money as money” rather than a bundle of living, breathing green-hued molecules deserving free speech protection.
Kangaroo Court Justice
Unfortunately, the Citizens United decision may not even represent the most absurd extreme toward which the Supreme Court has moved. That distinction could legitimately be reserved for Connick v. Thompson. In this decision, the Supreme Court’s conservative majority threw out a $14 million jury award for a New Orleans man who was imprisoned for 18 years, including 14 on death row, for a robbery and a murder he did not commit. One month before John Thompson’s scheduled execution, a private investigator discovered that prosecutors had hidden evidence that exonerated him. The New York Times highlights the injustice of this decision in its July 3, 2011 edition by quoting from a dissent written by Justice Ruth Bader Ginsburg.
Justice Clarence Thomas, writing for the 5-to-4 majority said the Orleans Parrish district attorney’s office was not liable for “failing to train its lawyers about their duty under the Constitution to turn over evidence favorable to the accused.” The majority opinion flies in the face of a 1963 landmark decision (Brady v. Maryland) by the Supreme Court which held that the Constitution requires the prosecution to turn over favorable evidence to the defense.
Justice Ginsberg vociferously disagreed with the majority. She writes, “The majority’s suggestion that lawyers do not need Brady training...‘blinks reality’ and is belied by the facts of this case.” Harry F. Connick was district attorney in Orleans Parrish for 29 years. He boasted that “he stopped reading law books” soon after he started the job. The office manual had four sentences about the Brady requirement, all inaccurate.
Justice Ginsberg concluded, “I would uphold the jury’s verdict awarding damages to Thompson for the gross, deliberately indifferent, and long-continuing violation of his fair trial right.”
With this decision, Justice Thomas, along with his four compatriots, literally sided with the only person in the case who deliberately violated the law of the land.
Women and Consumers Lose
The third most alarming set of decisions leveled a double-barreled assault upon women and consumers in separate cases involving Wal-Mart and AT&T Corporation. The same 5 to 4 conservative majority decided against women claiming a pattern of discrimination by Wal-Mart in Wal-Mart Stores v. Dukes. The “Gang of Five” also decided against a class of consumers promised free cell phones by AT&T in AT&T Mobility v. Concepcion.
In a miscarriage of justice affecting 1.5 million female employees of Wal-Mart, the court ironically and purposefully did not decide whether Wal-Mart had, in fact, discriminated against the women. The Court only decided those women could not sue Wal-Mart as a class.
And in the class action suit against AT&T, Justice Scalia, writing for the majority, took the opportunity in a narrowly defined fraud suit against AT&T Mobility to open pro-business floodgates by allowing AT&T, through the use of an arbitration clause, to require consumers to waive their right to take part in class action suits. Arbitration clauses, by definition, historically have been a legal device used to settle claims between businesses. They were never meant to apply to disagreements between businesses and consumers.
Long Live the Pharmaceuticals
Another nail in the collective coffin of average Americans was driven home by the Roberts-led reactionaries in two decisions favoring pharmaceutical companies. In Pliva v. Mensing, the Roberts-Alito-Scalia-Thomas-Kennedy judicial “pentagon” decided in favor of manufacturers of generic drugs using misleading labels.
In a stunning display of judicial activism, Justice Thomas, again writing for the majority, ignored precedent and wrote that federal law pre-empts state law under the Constitution’s supremacy clause.
In dissent, Justice Sonia Sotomayor said the majority decision invented “new principles of pre-emption law out of air.” As reported by The New York Times, the decision affected women who took the generic drug Reglan and suffered stomach ailments and serious neurological disorders. Lower courts had ruled in favor of the women concluding that federal law did not prevent the women from suing the drug companies under state law. The women said the labels on the drug should have contained warnings against such serious side effects. Justice Thomas countered that the process to change the labels would have been too complicated. He compared the process to “a children’s board game.” The “Gang of Five” majority left the injured women without any avenue through which to recover damages.
In Sorrell v. IMS Health, a majority of six judges decided that drug companies could continue to obtain records of prescriptions from “data mining” companies so that the drug companies can market their drugs to targeted physicians. Such information tells drug companies the prescribing habits of individual doctors without revealing patients’ names. This time, Justice Sotomayor voted with the majority.
The dissenters, led by Justice Breyer, agreed with the State of Vermont, which had sought to prevent such data mining, claiming that the state’s law sought to address “an intrusive and invasive marketing practice.” Justice Breyer wrote, “At best, the court opens a Pandora’s box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message.” Breyer points out that the decision “reawakens” the pre-New Deal threat of substituting judicial for democratic decision-making. In other words, the Supreme Court oversteps the boundary between the legislative and judicial branches of government in this decision.
As shown in these examples of judicial activism, the Supreme Court, as it now sits, represents a literal chamber of judicial horrors rather than a guarantor of fair and equal justice. Another dangerous line has been crossed.
Maynard Chapman, Editor
The Compass Newsletter
Copyright © 2011, The Compass Society
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