"Bong Hits for Jesus" and Other Atrocities - Vol. 3 Issue 74

For those of you with an interest in American Jurisprudence, the recent Supreme Court term was truly scintillating. The Robert’s Court came into its own as the most powerful instrument for rolling back the liberal policies that have dominated the Court since the triumph of legal realism and the dominance of the Warren Court. Whatever other “liberal” institutions and policies President Bush has tried to dismantle, his efforts failed to have the devastating effect that his 2 Supreme Court nominations have had. It is not just that Roberts and Alito have moved the Court to the Right, with Justice Kennedy as the “swing” vote many of the more progressive precedents will be overturned. When it comes to issues as diverse as separation of church and state, privacy rights, reproductive rights, plaintiffs access to the courts, antitrust, and the extent to which government can regulate industry, the Roberts Court will attempt to rewrite Supreme Jurisprudence in the spirit of so-called “strict constructionism.” It is a brand new world of judicial activism. Only this time, the activism is in the service of constricting justice and protecting corporations from lawsuits.

The Supreme Court, under the great Earl Warren, helped move our country from being a somewhat backward and parochial place where there was no equality among the races. Blacks, despite whatever their achievements may have been, were still LEGALLY marginalized and discriminated against until the Warren Court forced our society to remedy many long-standing injustices. Warren was able to craft a long series of landmark decisions including Brown v. Board of Education 347 U.S. 483 (1954), which overthrew the segregation of public schools; the “one-man, one vote” cases of 1962–1964, which dramatically altered the relative power of rural regions in many states; Hernandez v. Texas, which gave Mexican-Americans the right to serve on juries; and Miranda v. Arizona, 384 U.S. 436 (1966), which required that certain rights of a person being interrogated while in police custody be clearly explained, including the right to an attorney (often called the “Miranda warning").

In the term that just ended, Roberts, Alito, Scalia, Thomas and Kennedy have begun to overturn precedent and remake constitutional law. On affirmative action, in Parents v. Seattle and Meredith v. Jefferson, a decision of sweeping importance to educators, parents and schoolchildren across the country, they sharply limited the ability of school districts to manage the racial makeup of the student bodies in their schools. In Morse v. Frederick, they tightened limits on student speech, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner. Finally, in Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, the gang of five loosened restrictions on corporate and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.

Folks, this is only the beginning. We can expect similar decisions overturning various precedents. Despite their confirmation testimony, both Roberts and Alito are perfectly happy to overturn established precedent, so long as it promotes their conservative agenda. Anyone who thinks that the 2008 Presidential election is not critically important to our freedom is just not paying attention.

Semper fi,

Savant

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