By John W. Whitehead
“Presidents come and go, but the Supreme Court goes on forever.”—William Howard Taft
When I was in law school, what gave me the impetus to become a civil liberties attorney was seeing first-hand how much good could be done through the justice system. Those were the years of the Warren Court (1953-1969), when Earl Warren helmed the U.S. Supreme Court as Chief Justice, alongside such luminaries as William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter and Thurgood Marshall.
The Warren Court handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination. Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools and no civil rights protections for indigents. Yet more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court should always be—an institution established to intervene and protect the people against the government and its agents when they overstep their bounds.
That is no longer the case. In recent years, especially under the leadership of Chief Justice John Roberts, sound judgment and justice have largely taken a back seat to legalism, statism and elitism, while preserving the rights of the people has been deprioritized and made to play second fiddle to both governmental and corporate interests—a trend that has not gone unnoticed by the American people. In fact, a recent New York Times/CBS News poll found that just 44 percent of Americans approve of the job the Supreme Court is doing, while 75 percent say the justices’ decisions are sometimes influenced by their personal or political views.
The Supreme Court’s decisions in recent years, characterized most often by its abject deference to government authority, military and corporate interests, have run the gamut from suppressing free speech activities and justifying suspicionless strip searches and warrantless home invasions to conferring constitutional rights on corporations, while denying them to citizens. This outright regard for government authority at the expense of individual freedoms is most apparent in the Supreme Court’s most recent 8-0 ruling in Reichle v. Howards. In their unanimous decision, the Court actually held that immunity protections for law enforcement officials, specifically Secret Service agents, trump the free speech rights of Americans.
Even Justice Ruth Bader Ginsburg, often a lone voice of reason on the court in protecting Americans against government abuse, was hard-pressed to separate her personal bias in favor of the Secret Service (which also guards members of the Court) from the mandates of her job (to ensure that the rights of the citizenry are protected). In backing the Secret Service, the Supreme Court made it clear that when called on to strike a balance between the reach of government and the rights of Americans, government will win out virtually every time.
In this way, as the Christian Science Monitor rightly noted, the Court’s ruling in Reichle “is consistent with a trend at the high court in recent years granting government officials broad immunity from civil lawsuits charging that officials used their government power to violate constitutional rights.” For example, just the week before, the Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle, in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions—tasering a pregnant woman who was not a threat in any way until she was unconscious—violated the Fourth Amendment.
In Florence v. Burlington, a divided Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling, the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks.
In an 8-1 ruling in Kentucky v. King, the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes or apartments without a warrant. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by law enforcement officials.
Even the Court’s recent ruling in US v. Jones took great pains not to limit the government’s ability to monitor our activities. The ruling, which declared that police must get a search warrant before using GPS technology to track criminal suspects, was written so narrowly as to only apply to physical intrusions. In an age where we can easily be tracked simply using invisible signals from our cell phones, this amounts to little protection at all.
Moreover, in its landmark 2010 decision in Citizens United, the Court favored corporate interests over democratic principles, granting unfettered free speech rights to corporations. That case brings us full circle back to Reichle, which by placing government interests ahead of the free speech rights of the citizenry, reaffirmed the prevailing mindset that reigns supreme at the Supreme Court today—one that largely defers to government and corporations and, except in the most extreme of circumstances, refrains from limiting or even questioning the reach of government officials, whether it be the president, the police or the military.
In the end, the law means nothing if it isn’t applied to human beings compassionately. The reason judges sit on courts is to do justice. Yet the members of the Supreme Court are part of a ruling aristocracy composed of men and women who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo.
Unless you’ve experienced life outside the rarefied, elitist circles in which most of our judiciary operate, it is difficult to see the humanity behind the facts of a case, let alone identify with the terror and uncertainty that most people feel when heavily armed government agents invade their homes, or subject them to a debasing strip search, or taser them into submission. Likewise, if you’re not able to understand what it’s like to be one of the “little guys,” afraid to lose your home because some local government wants to commandeer it and sell it to a larger developer for profit, it would be relatively easy to rule, as the Supreme Court did in Kelo v. New London (2005), that the government is within its right to do so.
It also doesn’t help matters that Supreme Court justices are appointed for life. Thomas Jefferson came to understand the dangers posed to freedom by lifetime appointments to the Supreme Court. In a letter to Monsieur A. Coray, Oct 31, 1823, Jefferson confided his worry that the Court would end up doing more harm than good:
At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.
Less than 200 years later, Justice John Paul Stevens issued his own warning that the Supreme Court had taken a turn for the worse. Dissenting from the Court’s ruling in Bush v. Gore in which the Court effectively decided the 2000 presidential election in favor of George W. Bush, Stevens declared:
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to the confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at www.amazon.com. He can be contacted at firstname.lastname@example.org. Information about The Rutherford Institute is available at www.rutherford.org
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