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I've been wondering how long it would be before someone in the mainstream called a spade a spade, where this year's Supreme Court term is concerned.  Finally, this morning, the New York Times almost hits the mark, in its editorial Justice Denied.

It draws the nexus between this Court's decisions this year and the dismantling of Warren Court jurisprudence, particularly as it relates to the rights of the oppressed:

At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image.

Am I the only person who recalls what Justice Alito explained were his reasons for deciding that his passion in life lie in law instead of some other career where he could not do much as much damage? In deciding in 1985 to apply for a job with the Reagan administration?  Because he disagreed with "Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment?" (Emphasis mine.) I can't be, yet so far nobody in either the mainstream media nor the Democratic Party leadership appears to have brought that up.  The closest we have come is today's Times editorial.  Which strikes me as just a bit too little, too late.

This term, Justice Samuel Alito joined with his Chief Justice, John Roberts, to finally give meaningful voice to that disagreement in ways that would be (or should be) horrifying to decent people:

Criminal Procedure:  Dismissal of a habeas corpus appeal filed timely under the trial judge's stated deadline - which was misstated by the judge through no fault of the inmate's - Bowles v. Russell, eviscerating the "unique circumstances" doctrine -- developed to address this exact type of inherent unfairness to litigants (when they rely on a judge who has screwed up)-- as first enunciated by the Warren Court in Harris Truck Lines, Inc. v. Cherry Meat Packers (1962).

Establishment Clause::  Private citizens have no standing to challenge the government's allocation of funds to faith-based social service organizations which advocate religion to the exclusion of atheism, in Hein v. Freedom from Religion Foundation, Inc., neutering (through the same disingenuous reinterpretation of precedents that led to last week's decision in Parents Involved in Community Schools v. Seattle Sch. Dist. #1) the Warren Court's decision in Flast v. Cohen (1968), which gave taxpayers standing in federal court to challenge federal appropriations which violate the Establishment Clause.

Reapportionment::  We don't yet have a decision with Alito's name on it yet, but there's no hurry because of course Chief Justice Roberts took care of this for him already, when he ruled with the majority last year that the Texas redistricting plan which re-drew boundaries mid-decade solely to secure Republican majorities was not, despite all appearances, an impermissible political gerrymander depriving Democratic voters in Texas -- a state with an undisputed history of vote dilution vis a vis African-Americans (who vote around 90% Democratic) -- of the one-man, one-vote representation first articulated as a constitutional right in the Warren Court's Baker v. Carr (1962), in last year's League of United Latin Citizens (LULAC) v. Perry (a consolidated case involving multiple challenges to the 2003 Texas redistricting plan).  

[I guess we are supposed to find comfort in the fact that Latinos, whose voting patterns have historically collectively mirrored non-Hispanic white voting patterns, such that party-affiliation changes in a particular election are issue-dependent, had their rights violated in a single district.  Unlike the Black voters in Dallas/Tarrant Counties whose claims were decidedly and forcefully rejected in LULAC despite the same claim of racial vote dilution (with a far clearer showing of intent than existed in the other cases) effectively destroying the largest Black-majority voting district in the state on the grounds that it wasn't really a Black majority district that was being gutted, it was a Democratic district and thus, fair game for partisan gerrymandering.]

We don't even need to discuss the bonus cases which claim to be upholding Warren Court precedents but in fact undermine them significantly, such as last week's Parents Involved claiming to be affirming the "spirit" of Brown v. Board of Education.  Such as KSR International v. Teleflex, which is completely off the radar of most people since it involves the boring little subject of patent law, but which twists the intent of the Warren Court's attempt to establish uniformity in examiner decisions on the question of "nonobviousness" (a requirement to obtain a patent when an invention appears to be based in a modification to an earlier idea) by gutting the obviousness test actually created and used by the US Patent Office and its examiners for decades following the Warren Court's decision in Graham v. John Deere of Kansas City (1966)to avoid considering unfair things (such as market share, etc.) unrelated to the actual invention in determining patentability, dramatically increasing the power of large businesses holding patents to shut down innovation by claiming that ideas that build upon theirs are "obvious" and, thus, unpatentable. (OK, OK, we don't have to count this since it was 9-0, not 5-4 - but the decision still continues to send ripples through the patent bar because nobody expected the breadth of the reasoning and complete undermining of the status quo that the language of the decision wrought).

And, of course, we have Alito siding with the gender discriminating employer and writing the majority opinion in Ledbetter v. Goodyear Tire & Rubber Company and the reverse-race-discrimination whining plaintiffs in Parents Involved in Community Schools v. Seattle School District #1 last week, which I am willing to bet he also wanted to write the majority decision on but ended up deferring to Chief Justice Roberts, who wanted to secure his judicial legacy of reverse clock-winding, too.  Also two issues - gender and race discrimination -- that are about the little gal/guy versus the right of white males to share the spoils of life, be it good schools/power/money/status/employment with whomever they please.  And yes, I blame Samuel Alito, and his elevation.  Just because Justice Alito didn't specifically mention "discrimination" or "integration" in his list of issues on which he disagreed strongly with Warren Court jurisprudence doesn't mean that he was in favor of decisions in that area.  His own lower court decisions in areas implicating both race and gender roles, made that crystal clear, as a variety of commentators tried to shout from the rooftops last year during the Alito confirmation process.

In other words, this Supreme Court's mission has now been crystalized with Alito's appointment, and is clear to anyone actually paying attention:  systematically, and as thoroughly as possible, undo the Warren Court's protection of "the little guy" at the expense of those who already hold power.  Yet until today's editorial, nobody appears to have holistically looked this issue outside of all of the legal scholars and attorneys who write about these things.  Certainly nobody in the mainstream media has mentioned this angle.

Maybe it's because if they did, it would again beg the question from us all of why our Democratic Party leaders did not heed the fierce and panicked calls to filibuster this man, now Justice Samuel Alito, in whose elevation many many MANY people -- including the New York Times last year -- saw the undoing of those things that made our America fair and just for all, not just for the wealthy and white.  Why they lectured us about civility rather than realize just what was at stake - the consolidation of all three branches of government into a single, unified source of power over the average America, beholden to the idea that things were better way back when.

Whatever the case, the Warren Court has been referred to as "the first Supreme Court in American history to champion the legal position of the underdog and the outsider in American society".  It's clear that if left up to Justice Roberts' court, it will be the last, something that Justice Samuel A. Alito warned us all would happen through his 1985 job application to the Reagan Administration, since this was his very motivation for pursuing the field of law (instead of something more harmless, like marine biology). And our Democratic politicians didn't heed it.

UPDATE:  Kudos to counsellor Ben Masel who reminded me that I'd missed an important one:  the Roberts Court's whack up on the side of the head of high school students' right to free speech in the "Bong Hits 4 Jesus" case, Morse v. Frederick, which undermined the fundamental principle of student political free speech rights (albeit limited compared to adult free speech rights) first enunciated by the Warren Court in Tinker v. Des Moines School District (1969), based on reasoning (which unfortunately seems to have been adopted at least in part even by the dissenters) to the effect that where children are concerned, viewpoint restrictions -- normally a major constitutional no-no where free speech is concerned, even for children -- are now apparently OK.  Thanks for the reminder Ben!

Originally posted to Maat's Feather on Thu Jul 05, 2007 at 10:01 PM PDT.

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Comment Preferences

  •  put up a tip jar (8+ / 0-)

    excellent diary.

    I think, therefore, I snark. Anon.

    by byteb on Thu Jul 05, 2007 at 09:59:25 PM PDT

      •  I continue to be upset..... (9+ / 0-)

        at the roll back of so many hard fought, hard won changes.  continually crushing people's hopes is so bizarre.  An now we have the obscene ramblings of that wasp David Brooks to contend with (mercifully  behind the nytimes firewall).  His conclusion is people of different racial and ethnic groups just DO'T want to go to school together, and that is freedom too is obscene.  

        Brown, blacks and whites do not live side by side, even when they share the same income levels. They do not go to the same schools. And when they do go to the same schools, they do not lead shared lives. As several people noted last week, many educators are giving up on the dream of integration so they can focus on quality.

        Yes, quality.   He actually said that.  Like quality has NOTHING to do with money or the wealth of the families in a school system.  And if you have wealth, you can opt out of the school system, even if it is nice and white in color.

        Guess what, David Brooks.  Some of the integration is still going on and you aren't invited to our happy little integrated parties.   For sure you aren't living in our integrated neighborhoods and youroffspring aren't going to our integrated schools or riding on our public transportation where the dark skinned people don't get a seat.  

        Thanks for the rant, shanikka.  This whole issue caters to the old school bigots who want to go back to the good old days of what- lynching?  Race riots?  Assassinations of civil rights leaders?  

        Bottom line- if children get to know one another in schools, they can learn that we are all people- some you will like and some you won't.  And it won't be easy and simple, but at least you will be in school together.  Sounds simple, but not for these bush appointees (can't call them justices somehow.)

        You shall know the truth, and the truth shall make you mad. Aldous Huxley

        by murrayewv on Thu Jul 05, 2007 at 10:39:15 PM PDT

        [ Parent ]

  •  Pure Coincidence (3+ / 0-)
    Recommended by:
    shanikka, moiv, hhex65

    They're repealing civilization beginning with the Renaissance. The Warren Court coincidentally occurred  during this period.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jul 05, 2007 at 10:07:20 PM PDT

  •  I hope you're comfortable... (1+ / 0-)
    Recommended by:

    with others using this meta-4, because it's very powerful and true.

  •  It took them 27 years (7+ / 0-)

    since the election of Ronald Reagan to completely remold the Supreme Court to their reactionary vision.

    How long will it take us, even if we were to gain Democratic dominance of the legislative and executive branches, to bring about another court favorable to the dispossessed?

    •  Kennedy's pretty old- we could replace him.... (2+ / 0-)
      Recommended by:
      YellowDogBlue, Elise

      when he retires.  Stevens is older, but a dem would be able to find a stong leader for replaement.  chief lawyer Robers is powerful but could become publicly reviled as a pawn of the Pope.  Or we could replace the current Pope with a more liberal one, one who advocated privacy and personal choices.  Notice Roberts had to go to Ireland to pick up two lovely white babies to adopt, a country where abortion has been off the books.   Lots of Irish adoptions going down- you read about them every day.  well, no, you don't.  Probably their priest recommended them.

      I grew up Catholic in Milwaukee during Father Gropi's protests for Open Housing.  Now there was a Catholic priest.  My dad gave his St. Anthony's contribution to Father Groppi after the all white suburban church we went to promised no contributions you made would support Father Groppi.

      You shall know the truth, and the truth shall make you mad. Aldous Huxley

      by murrayewv on Thu Jul 05, 2007 at 10:44:55 PM PDT

      [ Parent ]

    •  that depends in large part (2+ / 0-)
      Recommended by:
      caliberal, LordMike

      on electing democrats who actually care about such things. i suspect that for all the bluster, the elected democrats largely did not object to this final nail in the coffin of the warren court, except in fundraising letter rhetoric.

      surf putah, your friendly neighborhood central valley samizdat

      by wu ming on Thu Jul 05, 2007 at 10:45:11 PM PDT

      [ Parent ]

      •  Disagree (0+ / 0-)

        All three frontrunners for the Democratic nomination are at least as progressive as Kennedy, Johnson, or Carter.

        And the Senate? The Democrats we have now are, overall, much more progressive than Democrats from the 1960s and 1970s.

        •  will they fight for the warren court issues? (3+ / 0-)
          Recommended by:
          caliberal, kdrivel, YellowDogBlue

          i suspect that most will do as they have recently done, ie. bemoan the decisions but tacitly accept them as settled law. alito and roberts were transparent as to their legal and political positions, but they did not meet with much in the way of actual resistance by any of the senators running for president.

          surf putah, your friendly neighborhood central valley samizdat

          by wu ming on Thu Jul 05, 2007 at 11:35:08 PM PDT

          [ Parent ]

          •  Context is everything (1+ / 0-)
            Recommended by:

            did not meet with much in the way of actual resistance by any of the senators running for president

            ...when operating with a Republican President and a very united Republican majority in the Senate.

            It's a given that pols work within the system and yield to the majority view once the legislative battle is decided. Otherwise we could not have a functioning democracy.

            Once we have a Democratic President and a more solid Democratic Senate majority, I think we should expect (demand, even) restoration of a liberal court as quickly as the system allows (which, terribly, will not be very quickly).

            •  if someone does not lead the fight (2+ / 0-)
              Recommended by:
              caliberal, kdrivel

              in the minority, it does not make a convincing case for their changing behavior when in the majority. they didn't even make a nominal show of fighing as if their political lives depended on it. as shannikka shows to a devastating degree in this and her other diaries on the subject, those two capitulations without a fight have quite possibly enabled the dissolution of the whole warren court corpus of decisions. it is no small thing, and i do not view such a thing lightly.

              if a party will not fight when the chips are truly down for a generation, it raises questions about its commitment to those issues and the people that they represent at all. a grave breach of trust was committed with the democrats' roberts and alito non-battles, and mere appeals to partisan loyalty will not make them go away.

              surf putah, your friendly neighborhood central valley samizdat

              by wu ming on Fri Jul 06, 2007 at 02:23:21 AM PDT

              [ Parent ]

  •  You forgot "Bong Hits for Jesus" (4+ / 0-)
    Recommended by:
    MJB, mcfly, Bcgntn, DarkestHour

    taking a whack at Tinker v Des Moines

    Democratic Candidate for US Senator, Wisconsin, in 2012

    Abolish Mandatory Minimum Sentences. Don't wait 'til you're President.

    by ben masel on Thu Jul 05, 2007 at 10:56:02 PM PDT

  •  Roberts as Chief Justice (3+ / 0-)
    Recommended by:
    YellowDogBlue, NoMoreLies, willb48

    may preside in history as the modern legal equivalent of Chief Justice John Taney, the occasional slaveholder, who wrote the Dred Scott v. Sanford opinion (1857) and made it the law of the land, precipitating the Civil War.  John Taney, the state's rights guy, succeeded Chief Justice Marshall who installed a powerful Supreme Court as an equal branch of government with the Marbury v. Madison decision.

    So much hangs in the balance over the next 18 months with a smiling Chief Justice who is overturning lifetimes of work dedicated to the principle of Equal Justice Under Law.

    Jesus, Justice and Mercy are weeping.  me too.

    Great Diary.

    Every time history repeats itself the price goes up - Anon.

    by Pithy Cherub on Thu Jul 05, 2007 at 11:06:04 PM PDT

  •  Want to see what's next for Roberts and Scalito? (2+ / 0-)
    Recommended by:
    sberel, mcfly

    When Sandra Day O'Connor retired two years ago, Professor Marty Lederman compiled a list of vulnerable SCOTUS precedents that might fall because of Alito replacing O'Connor on the Court.

    Because the list is two years old, some of these precedents have already been erased.

    So this is how liberty dies -- with thunderous applause.

    by MJB on Thu Jul 05, 2007 at 11:33:17 PM PDT

  •  Perhaps a piano will fall from the sky (1+ / 0-)
    Recommended by:

    and land on Samuel Alito.  I saw lots of near-misses in old black-and-white farces.  Perhaps if Scalito and Thomas would golf in Florida?  Florida has more deaths from lightning strikes than any other state, and a great many of these deaths occur on golf courses.

    Seriously, we're in very bad shape court-wise.

    I still remember my anger at Bill Clinton as he failed to put forth judicial nominations for lower court judgeships - and then lost control of Congress.  We will need a Democratic president and sixty senators to merely run in place.

    "I'm sick and tired of being sick and tired." - Sophie Tucker

    by willb48 on Thu Jul 05, 2007 at 11:34:29 PM PDT

  •  Love this spot-on diary. If anything's missing, (1+ / 0-)
    Recommended by:

    IMO, it's a discussion of "judicial activism".

    The phrase--whatever it means--has been used as the predicate in so many rightwing sound bites over the years.

    The core of the Roberts Court--Scalia, Thomas, Roberts and Alito--consists of judicial activists under any reasonable definition. They seek to make law, to re-interpret the constitution regardless of precedent, and to assert a political philosophy regardless of constitutional and legislative principle.

    Not one of them truly adheres to so-called "federalist principles". These judicial activists are more than happy to toss federalism--not to mention stare decisis, aside whenever the substance of the issues conflicts with their personal belief systems.

  •  Actually the patent ruling.. (0+ / 0-)

    ...was a very good one...

    You should see the ridiculously obvious and overly broad patents that are getting approved nowadays...  The patent office pretty much approves anything and everything nowadays.  

    Can anyone say amazon one-click?

    I think if I submitted a patent on how to urinate, it would get approved, and I could charge everyone int he world royalties for 20 years... then get it extended by patenting wiping....

    Microsoft just patented the FAT filesystem, which has been around since first IBM PC in 1981, but somehow has no prior art...  Verizon claims to have patented the entire Internet (I have no doubt that they DO have a valid patent on it. considering how lazy and worthless the patent office is)...

    And let us not forget that the drug companies use bogus and obvious patents to try to game the system and extend their drug exclusivities...

    It's the large companies abusing the patent system, not the little guy... and it's costing the little guy a lot!

    That was the only ruling in this term that I was happy with.



    •  Here's the Issue (1+ / 0-)
      Recommended by:

      I agree with you that original precedent Graham is a good one.  But I know patent lawyers all over for both big and small corporations who are rocked to their foundations over the breadth of the KSM decision, and the destabilization of the TSM standard.  The only thing they agree on (since they disagree over who came out ahead) is that it's guaranteed a massive payday for patent litigators, no matter who you represent.  And they did so based on an extremely narrow fact pattern which I've been told (since I don't litigate patents) does not even begin to reflect the reality of patents.  Invalidating a patent because it steals from the prior art is fundamentally different from invalidating it because the original inventor and all of its experts get up and testify that the new innovation based on their product was "obvious" to anyone skilled in the art.  This basically makes patent defense a function of money even more than it already was.  I just don't see a win for the little guy in that.  Hopefully, I"m wrong and you're right.

      My separate place for mental meanderings: Political Sapphire

      by shanikka on Fri Jul 06, 2007 at 05:01:24 AM PDT

      [ Parent ]

      •  The patent system has been so abused... (0+ / 0-) completely bogus and obvious patents that cripple innovation via "patent trolls" that this ruling was welcomed with celebration in the tech industry.  The absolute ridiculousness of the patents that are approved in our field is mind-boggling, and it poses a huge threat to small software/hardware shops as well as open source!

        In know that Big Pharma was very upset with the ruling... they have been gaming the system with bogus patents for years...

        "obvious" patents should never be approved in the first place... but they are, and now, maybe, there will be some sanity restored to the patent office.

        But, I agree... the roberts court decisions have been all about feeding the lawyers...



        •  Patent System problems... (0+ / 0-)

          Are the Patent system problems with the precedent and underlying law, or are they with how the laws and precedent are being applied?  

          I tend to believe it's the latter.  

          As an examiner some 20 years ago, I was allowing about 30% of the cases that I dealt with.  That was an uncommonly low allowance rate and was based on training under a brilliant patent mind.  Someone who took great care with his work and the examiners he trained.  I can't recall even one of my decisions being overturned on appeal out of probably 200 some cases I examined.

          I never had difficulty applying the Obviousness standard in a very rigorous manner.

          Software patents were just starting to be issued when I left.  I realize software technology contained many new challenges for the PTO but I feel the laws and the case precedent were sufficient to handle this as long as the people operating and managing the PTO were dilligent in assuring quality.  But alas, the PTO was more concerned about automating and internationalizing its operations than assuring the quality of the patents.

          Don't be surprised if this new precedent is a mere bandage on the gaping wounds that exist all over the Patent legal system.

  •  And they're not even subtle about it (4+ / 0-)
    Recommended by:
    sberel, Caldonia, mcfly, FGFM

    Warren surprised the bad guys.  On the other hand, Alito and Roberts were out front- we knew exactly how evil they were, and let them through without a fight.

    This Court is George W. Bush's evil legacy, and we will suffer for decades under it, until there is a sea-change, or until we have returned to a society of wealth and serfdom.

    It was all there for us to see, had we just looked.  In fact, I dug up an old picture the other day and looked at it more carefully:

                               Click for more

    Punch up your blogs and publications with cartoons from independent lefty artists.

    by dhonig on Fri Jul 06, 2007 at 04:59:42 AM PDT

  •  Their unstated but very obvious goal (2+ / 0-)
    Recommended by:
    arkdem, DC Scott

    is to turn back the clock and restore the "proper order" of the 1950s, when African Americans and other minorities knew their places, women stayed home (unless you were poor, whereupon you worked because  no one should help the poor)and were silent, submissive and obedient to their husbands--and straight white Christian men ruled the roost.

    It was a horrible time for everyone except fat cat white Christian men.

    The last time we mixed religion and politics people got burned at the stake.

    by irishwitch on Fri Jul 06, 2007 at 08:35:38 PM PDT

  •  This is excellent and chilling..... (0+ / 0-) The deliberate dismantling of stare decisis is disturbing. Even Hitler didn't have intellectual brownshirts of this caliber on his payroll.

    "I am my brother's keeper. I am a Democrat." -- That's your slogan, Democrats.

    by Bensdad on Fri Jul 06, 2007 at 09:06:35 PM PDT

  •  We can delegitimize them (1+ / 0-)
    Recommended by:
    The right wing has been delegitimizing the Warren Court for years. They have no right to expect us to be good losers.
    Actually we still have a 5-4 margin on many issues.
  •  As a former Patent Examiner... (0+ / 0-)

    I can only guess the turmoil this is causing at the Patent & Trademark Office.  Graham v. John Deere is a precedent applied in the resolution of just about every case that is handled by the PTO.

    I thought Scalia, years ago, was deriding previous activist courts.

  •  It is very upsetting (1+ / 0-)
    Recommended by:

    how this court is attempting (successfully) to drag us back into some kind of psuedo-19th century nightmare society.

    The thing I find almost as disturbing is John Roberts half-hearted attempt to publically misrepresent the circimstamces of the cases in order to justify his decisions. In the "Bong hits 4 Jesus" case, he stated that his reasons for curbing that bit of free speech was that it took place at a school-sponsored event--which was patently not the case, as proven clearly in the case. The student involved and his classmates were dismissed from school so that they could attend the Olympic torch passing if they wanted to--some went home, others walked off the school grounds in order to attend.

    It's as if he had been assigned his pre-ordained decisions and ignored the reality of the case in order to make the decision fit.

    I guess the rotten apple doesn't fall far from the rotten tree that nominated it.

    Impeach the imperial idiot

    by Jan Pults on Sat Jul 07, 2007 at 05:18:38 AM PDT

  •  IF Dems take all 3 branches (0+ / 0-)

    We need to pass legislation to add 2 more to the court. Screw the repugs who scream foul this is our country at stake!

    (-7.50 -6.31) "We will bring them home, we will fund the withdrawl!-Me

    by arkdem on Sat Jul 07, 2007 at 06:31:52 AM PDT

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