Biased press coverage of Supreme Court aids Obama and Democrats

American law has moved in a more liberal direction over the last 20 years, steadily restricting use of the death penalty and criminal sentencing, and expanding lawsuits against businesses, thanks largely to the Supreme Court.

But to the left-leaning journalists who write about the Supreme Court, none of this has ever happened, and the Supreme Court, which is responsible for many of these liberal changes, remains a conservative boogeyman.

Slate’s Dahlia Lithwick, America’s most famous Supreme Court reporter, falsely claims today that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

This is breathtakingly inconsistent with reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court overturned thousands of sentences given to criminal defendants in cases like U.S. v. Booker (2005), regardless of defendants' guilt, based merely on the fact that judges, rather than juries, had made findings related to those sentences.  The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which potentially opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court recently allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009).

The Supreme Court has steadily broadened businesses’ liability for discrimination against female and elderly workers. It continuously expanded the definition of sexual harassment, overturning earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowing institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejecting longstanding lower-court limits on lawsuits where there is no economic or psychological harm (in Harris v. Forklift Systems (1993)). It also allowed businesses to be sued for discrimination against elderly workers even absent any showing of discriminatory intent or differential treatment (in Smith v. Jackson (2005)). All of these decisions reversed lower court rulings in favor of businesses.  The Supreme Court often rules against business in discrimination cases.

In short, Dahlia Lithwick’s perception of the Supreme Court bears no relation to reality. But it is shared by most of the nation’s leading court reporters, at publications like the New York Times, the Washington Post, USA Today, and the Los Angeles Times, who promote a similar caricature of the Supreme Court.

As a result of such reporters ceaselessly peddling this perspective to their readers, it is also the perception of much of the newspaper-reading public, especially in the so-called Blue States, many of whom view the Supreme Court as “too conservative.”

For example, factually inaccurate and dishonest reporting on recent Supreme Court decisions contributed to recent election results.

A classic example is the Supreme Court’s recent Ledbetter decision, which many reporters wrongly claimed required discrimination plaintiffs to sue within a rigid 180-day deadline — when in fact, most pay discrimination cases could legally be brought for at least 3 years after discrimination allegedly occurs, under laws unaffected by the Supreme Court’s decision (like the Equal Pay Act), and the 180-day deadline, even when applicable, had lots of common-sense exceptions to keep employers from escaping justice (such as tolling to protect hoodwinked employees).

Obama repeatedly made false claims about the Ledbetter decision in order to use it as a campaign issue, and the press not only let him get away with it, but sometimes made false claims of its own about the case.

In other news, Obama recently slapped an unconstitutional gag order on a critic of his health-care plan.

Obama’s health care plan has drawn criticism for raising taxes, breaking campaign promises, increasing the deficit, and ending many health-care plans and options.