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No Precedent for This Supreme Court

The decisions the Roberts Court are making are unprecedented in overturning established precedent, so why should their decisions be precedent for the future?
The decisions the Roberts Court are making are unprecedented in overturning established precedent, so why should their decisions be precedent for the future?
© 2014 Karen Rubin/

It's interesting that the Supreme Court's decisions are setting precedent. By a solitary one-vote majority, in one fell swoop, the SCOTUS has eviscerated whole categories of laws: campaign finance, gun control, religious discrimination, voting rights, women's rights.

Corporations were specifically established to be separate from the liabilities that human people are subject to, yet now 5 judges overturned that core legal concept to say that corporations have the same rights as people of free speech (read "cash", not actually vocal speech). And soul-less corporations which can be shown to pollute, contaminate, endanger public safety for the sake of bigger profits, are now deemed to have the capacity to have "religious belief". What is more, somehow the Court (or government) can divine which corporations' "beliefs" are "truly" "felt", as if corporations could actually "feel." (To see the absurdity, you don't have to go further than Hobby Lobby, itself: previously this for-profit company had no problem covering these same forms of contraception that it objected to as part of Obamacare, actually invests in companies that produce contraception and the company has no problem manufacturing in China which has forced abortion).

And that quaint "Establishment clause" which the founders felt important to prevent the dissolution of the nation over religious fractions? well this Court feels that it is okay to pray for Jesus' salvation before a public meeting (Greece, NY decision).

Gun rights? For more than 200 years, there was no individual right to own a gun - it was a collective right, as in "a well regulated militia" in order for citizens to protect the government from foreign invasion, as Michael Waldman, president of the Brennan Center for Justice at New York University School of Law notes,. But that all changed with the Roberts Court, which threw out the ability of District of Columbia (Heller) and Chicago (McDonald) to regulate access to guns - an individual being more important than public safety (Chicago had 30 murders in 13 hours over July 4th weekend).

During Roberts' and Alito's Senate confirmation hearings, both pledged to honor stare decisis -the Latin term for the judicial principle of upholding an earlier high-court decision establishing precedent.

They clearly committed perjury because they had no intention of any such thing.

From the get-go, Alito and Roberts (actually Scalia paved the way) have gone out of their way to claw into their court cases that would undo, reverse, and contradict precedents and decisions going back decades, even hundreds of years. This was clear in Citizens United, a settled case which the right winger justices ordered back to the court because they wanted to use it for their own purpose. When the case first arrived, the only thing that was being contested was the organization's right to air an anti-Hillary film too soon before the election, but the Activist Conservatives wanted to use the case to overturn campaign finance limits they found irksome. They continued that pattern in the McCutcheon decision, giving even more power to the deepest pockets.

Theoretically, there are checks and balances on the federal government, but who checks the Supreme Court?

The test of a fair decision isn't that it anger both sides of the argument, but that the same decision would have been rendered and applied equally and fairly regardless of who is in power or who is the plaintiff or complainant. Instead, the Right Wing Activists (who have the audacity to call themselves "Originalists," as if they have communication with the Founders, just as they communicate directly with Jesus, and nothing has changed from 1787), they keep making law that they throw out there as having limited result, in order to achieve a certain result.

This was clear in the National Labor Relations Board decision that basically nullified Obama's ability to make recess appointments, despite the constant use of tactics by the Republican minority to prevent nominations from coming to a vote, in some cases, to prevent an agency from functioning altogether (Consumer Financial Protection Board) or a law (Dodd Frank) from being implemented. It is inconceivable they would have arrived at this decision when George W Bush was in office (who made 171 recess appointments including the despised John Bolton as United Nations Ambassador, while Ronald Reagan made 232).

"The Bush administration, citing the large number of recess appointments made by presidents, said there is nothing extraordinary about the appointment."

Clearly Roberts' and Alito's earlier ideological support for a "unitary executive" (ruling that Bush had the power to designate anyone he wanted an enemy noncombatant, subjected to unending incarceration without charges or trial) went out the window.

In order to eviscerate the Voting Rights Act, the right wing judicial activists had to say that the protections were no longer necessary in a "post racial society", but at the same time, stomped on the supposed co-equal Legislative Branch by cavalierly tossing out Congress' own studies which led to the reauthorization legislation.

Lately, the Right Wing Majority has taken to re-writing laws, and overturning well established precedent. They are particularly disdainful of Equal Protection provisions of the 14th Amendment.

Of course the big prize is to overturn Roe v Wade.

While it's true that women did not have any rights for most of America's history - not to life, liberty and especially not the pursuit of happiness - that changed nearly a century ago, and since then, women have been considered to be equal citizens, capable of owning property, having professional licenses, even voting. More recently, the right for women not to be discriminated against in a job was also established.

Not so with the 5 Catholic Men who sit on the court. They even contradicted their own precedent - as Scalia did - to arrive at the Hobby Lobby decision establishing that a for-profit corporation could opt out of a federal mandate to have female employees obtain free contraception from their health insurance plan, based on a corporation's "religious beliefs." Scalia had to contradict his own decision in ruling against Native American's right not to be fired from their job if they used peyote in their religious (read "pagan") ritual. It was that decision that prompted Congress to pass Religious Freedom Restoration Act of 1993 - ironically, the law that they used in Hobby Lobby. Despite stating that Hobby Lobby decision could only be applied narrowly (though 52% of workers are employed by corporations are "closely held" like Hobby Lobby), two days, later, the 5 Catholic Men even contradicted their own decision, in ruling that a Wheaton College doesn't even have to file a pesky waiver for its religious exemption to provide any and all contraception coverage. They chose to completely disregard how many people (women) would be impacted, the nature of the injury to the women (contraception is used to treat certain medical conditions, and not just to avoid pregnancy, nor to counter the ignorance of the statements made about the forms of contraception being akin to abortion (not to mention challenging the position of Hobby Lobby's religiousity, in view of its corporate activities).

"In her Hobby Lobby dissent, the inimitable Ruth Bader Ginsberg warned that by allowing a boss' beliefs to trump female employees' rights to birth control, the Court had 'ventured into a minefield'." Jess O'Connell, Executive Director, EMILY's List, wrote.

In effect, Hobby Lobby codifies discrimination - and has already unleashed an army of new lawsuits, gleefully sought by everyone and anyone claiming religious exemption from all manner of law - to discriminate against the LGBT community, for example.

And now establishing (in clear violation of the First Amendment) that the religious beliefs of owners/bosses can be imposed on workers, and if they don't like it, they can get a job elsewhere. Rather than a win for "religious freedom", that is a clear violation of the Establishment clause. The government is supposed to stay out of religion altogether. It cannot be the arbiter of who has "closely held:" beliefs, and even if there were "closely held beliefs" there are those companies owned by people who say God mandates that Black people are inferior,. that God tells them to sacrifice living things, that God mandates against vaccinations or blood transfusions.

"Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude," Ginsberg said in her dissent.

The court had to actually go back and reach deep to a law that Congress passed to counter a decision by Scalia ruling that Native Americans using peyote in religious rituals could not be protected from being fired from their job. One wonders if by virtue of this ruling, in which Scalia contradicts himself, a corporation owned by Muslims will now have the power to enact Sharia Law over other law (how about those states which have specifically banned Sharia Law - how could they do that?). How about corporations refusing to pay taxes that fund war because of their religious objection?

And women? Women have no rights at all, certainly they are lesser beings compared to employers and the Corporate Being. It is astonishing to have in the first place shown a preference to Christian fundamentalism in giving a free pass on government regulation, and also basically told women that 1) their religious beliefs are less important and 2) if you don't like it, find a job elsewhere, which if anyone is looking, undermines the "free market" for labor because it reduces the job pool for women.

Free market for labor? This court has gone out of its way to attack workers rights. They went out of their way in Harris v. Quinn to overturn decades of precedent that basically said that workers who choose not to join a union and pay union dues can make that choice, but because they benefit from collective bargaining, have to pay an "agency fee."

In their contorted decision, SCOTUS ruled that compelling an agency fee (for service, mind you), is tantamount to "compelling speech" and speech, you know, should be free (except that in Citizens United, they also ruled that "money" equals "speech," so speech isn't really free, but is based on what you can afford; those with more money are entitled to more "free" speech than others).

But if making workers pay an agency fee is violating their free speech, then, I should not be compelled to support candidates and political positions based on the campaign contributions and lobbying activities of those companies I hold shares in (that is, contra-Citizens United because Citizens United has set up a situation where my money, which is free speech, is compelled without my permission). No company should be able to make contributions without: 1) disclosing the contributions and 2) getting approval of shareholders. But by the Harris ruling, even a majority vote would not be sufficient - so shareholders who do not support a candidate should be able to opt out and get that share of money put back into their dividend check.

In fact, Scalia in the Citizens United case ridiculed the US Solicitor General, saying that any stockholder who reads their annual report would be informed about political contributions. That is ignorant on so many levels because a) shareholders don't read annual reports and b) corporations do not disclose, let alone seek approval, for political contributions and lobbying. It is just as ignorant as when the Supreme Court declared matter of factly that Voting Rights protections are no longer necessary in our "post-racial" society, or that relieving corporations of the requirement to provide free contraception through their health plan poses no inconvenience to the female employee because "the government can just provide it."

Lately, the Roberts Court has resorted to First Amendment protections as its "go to" to actually take away "First Amendment" protections of religion, speech, assembly. They used "free speech" to justify Citizens United and McCutcheon, to weaken unions, and to take away protections for women trying to access health clinics (and completely disregarding the Establishment Clause, Equal Protection, Search and Seizure).

The Court used the "free speech" argument in eliminating the 35-foot barrier protection from protestors for women seeking care at clinics that perform abortions, as well as their doctors, nurses, in McCullen v. Coakley (because they believe protestors should be unfettered to badger and intimidate women seeking to exercise their right to make their own medical decisions). Well, this makes for more civil discourse, the Court said, because the protestors don't have to shout from across such a distance, disregarding the actual evidence of abortion clinics being subjected to bombings and murders and women having to walk through a gauntlet of taunting while she is facing one of the most difficult choices in her life. Never mind that the Justices shield themselves from protestors with a 250-foot barrier (also guns. Guns are not allowed anywhere near the Supreme Court).

Would that the Court show such care for "free speech" protection when doctors are prohibited from discussing medical issues or gun safety with their patients.

Police can't search a cell phone's database without a court order, but how are laws requiring women to undergo unnecessary invasive medical procedures not a violation of privacy or unnecessary "search and seizure?" (I suspect that women's rights groups are afraid to bring a suit to Supreme Court because the Catholic Rightwing Male Justices will use it as excuse to overturn Roe v Wade altogether, as they have indicated they would do through their other decisions).

Lately, they like to use the "free speech" argument a lot. Well, having someone wave an AK-47 around a Town Hall meeting stifles my free speech, seeing people on a village green or at a parade with guns impedes my right to freely assemble, and when the shooter fires off 100-rounds because there are no limits on the size of a magazine, that really cuts into my right to "life, liberty and the pursuit of happiness."

"Free speech" is what the Right Wing majority used in deciding that corporations have a right to it in Citizens United and rich people are allowed more of it in McCutcheon. The false argument used by Conservatives (who tend to be the ones on the monied side - I would guess the decisions would have fallen differently if the Liberals had the cash advantage) is that the New York Times should have free speech. But the Newspaper already has all the rights it needs to free press - the New York Times Corporation should have no more "right" to tilt elections through campaign contributions than McDonalds, Koch Industries, Lockheed-Martin or News Corp (Rupert Murdoch).

The road to Hobby Lobby went through Bush v Gore.

Scalia, indeed, in the Bush v Gore case had to pull that "unequal protection" ruling out of the air (the notion that different Florida precincts used different voting machines) - while also declaring that the Constitution does not actually stipulate a right to "one person one vote". But to get there, he had to overturn the Constitution's division of powers (10th Amendment that Tea Partyers hold nearly as sacred as the 2nd Amendment) that gives states control over their election. And Florida's election law mandated a manual recount because of the slim difference in votes between Gore and Bush.

But Scalia needed Bush to win, not just because the Republican in the White House would advance the agenda he favored, but looking down the road, he saw Citizens United, Hobby Lobby, Harris v. Queen, Greece. He wanted a someone who would appoint justices in his own mold.

So Scalia declared in rendering the decision that Bush v Gore was a "one-off", a ruling that could not be used as precedent. What? What ruling can't be used as precedent?

Actually, every ruling that has come before the Roberts Court.

Precedent? They don't actually care, not even about their own precedents. They can decide one case in favor of a "unitary executive" (the right to declare Islamists "enemy noncombatants" and hold them without charges or trial because of some fabricated notion of "innocent until proven guilty" doesn't apply to non-citizens) and another that says the Obama administration does not have the right to make a recess appointment.

If the Supreme Court's decision on Obama recess appointments in some way nullifies those appointments and the actions of those agencies, then the entire Bush Presidency - including the Alito and Roberts appointments to the Supreme Court should be nullified and all the decision that follow. Bush was an illegitimate president installed by the Right Wing Majority, led by Scalia, who recognized that a Right Wing Patsy President would make the sort of Supreme Court appointments that would allow him to remake America according to his political theology. That's what this is about. And that's why Bush v Gore has led to Hobby Lobby.

The precedent the Roberts Court has established - and John Roberts' sad legacy - is that the Supreme Court's decisions no longer are precedent.

Karen Rubin, Long Island Populist Examiner
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