How odd that the Republican presidential hopefuls continue to rail against the courts. Conservative Republican appointees to the bench control the courts.
For decades, at the highest level of the judiciary, five Republican justices on the Supreme Court have acted to thwart democratic politics, not only striking down major parts of federal laws like the Violence Against Women Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, but deciding key elections (see Bush v. Gore) and distorting our politics by turning corporate treasuries into political war chests (see Citizens United).
So why do Republicans keep trashing the most faithful and activist Republican branch?
A lot of this ferocious hostility to the judiciary is the genuine residue of opposition to aging Supreme Court decisions that the Right never accepted, like Brown v. Board (1954), Engel v. Vitale (1962), Griswold v. Connecticut (1965), Roe v. Wade (1973), Romer v. Evans (1996) and Lawrence v. Texas (2003). These decisions dismantling Jim Crow, ending compulsory school prayer, defending the reproductive autonomy of citizens, and protecting gay Americans against discrimination and criminal persecution opened up America in profound ways that the Right will never forgive.
So even when the Roberts Court deifies corporations by wiping out the rights of consumers, shareholders and workers, it’s not enough for the people who run the Republican Party. They are still working to destroy abortion rights, restore official school prayer and re-criminalize the gay and lesbian population.
When seen this way, there is method in the madness of campaigning against the courts they control. The whole point is to crush civil rights, civil liberties and dangerous democracy, and turn the rule of law over to large corporations. When it comes to law, Mitt Romney and his constitutional advisor Robert Bork, New Gingrich, Rick Santorum and Ron Paul speak in right-wing code that inverts and distorts the traditional meanings of legal and constitutional language.
To decode and interpret right-wing polemics about the courts and the Constitution, you need the following glossary of key terms you will hear on the Republican campaign trail.
“Borking”—Right-Wing Usage: The unfair practice of publicizing and criticizing the record of a conservative judicial nominee in a legislative hearing, resulting in widespread public rejection and legislative defeat , e.g. “when those liberals devoted so much time to public hearings on Robert Bork’s right-wing judicial philosophy back in 1987, they really Borked him, so we learned our lesson and told Roberts and Alito not to reveal their views so they wouldn’t get Borked too.” Preferred Usage: “imposing authoritarian values and reactionary politics on an unwilling public,” e.g., “Reagan failed to get his Supreme Court nominee Robert Bork through the Senate because he had a vast paper trail and people were afraid of being Borked, but Romney has put him in charge of legal affairs for the 2012 presidential campaign so if we win, we’ve got a great chance of Borking the entire country.”
“Citizens United”—Right-Wing Usage: The Emancipation Proclamation for private corporations, the 2010 Supreme Court decision that finally turned American government over to its proper owners--“job creators,” i.e. private corporations, e.g., “With his popular touch, Mitt Romney translated the Roberts Court’s brave decision in Citizens United by saying that ‘corporations are people too.’” Preferred Usage: A catastrophic moment in American history when five justices on the Roberts Court gave CEO’s the power to spend corporate treasury money without limit or disclosure in election campaigns. “Don’t you think it’s time we natural persons rose up and passed a constitutional amendment to reverse Citizens United?”
“The Constitution in Exile”—Right-Wing Usage: The excellent constitutional theories and doctrines of the reactionary Lochner Court--especially those involving a pinched view of Congressional power under the Commerce Clause and an expansive view of judicial power to strike down economic legislation under Due Process – as they live in the hearts of conservative judges and lawyers and are dramatically resurfacing in the work of the Roberts Court, e.g. “I used to secretly harbor dreams of reviving the Constitution in Exile but Citizens United has now taken us so far beyond that limited agenda that we’re really not in exile any longer.” Preferred Usage: Reactionary dream, fast being realized, to revive hyper-judicial activism to invalidate all progressive social and economic legislation and regulation.
“Crony Capitalism”—Right-Wing Usage: when large corporate players back a rival’s candidacy, e.g., “I thought they were going to raise tens of thousands of dollars for me, but those ingrate crony capitalists took all the money I helped them get in tax breaks and went with Romney instead.”
“Federalism”—Right-Wing Usage: The principle that policy decisions should be made at the level of government most vulnerable to corporate and right-wing domination, e.g. “our corporate lobbyists and bundlers in Washington are promoting federalism by getting Congress to preempt all state consumer laws relating to product liability and bank regulation while our anti-choice activists are promoting federalism by trying to convince the Supreme Court to give states the power to redefine when life begins.” Preferred Usage: The doctrine that the national government, the states and localities should work dynamically to advance the common good of the people and prevent a collapse of all powers into one. “The Right-Wing wants to destroy federalism in tort law by having the Supreme Court sharply restrict state jury verdicts and punitive damages and by lobbying Congress to wipe out state consumer protection laws.”
“Follow the Law, Not Make the Law” – Right -Wing Usage: What Republican judges and justices do and what Republican judicial nominees will do, e.g., “It’s only a matter of time before our five justices who follow the law and don’t make the law strike down the Affordable Care Act (Obamacare) and Section 5 of the Voting Rights Act and step up the campaign to invalidate jury verdicts and punitive damages in the states.” Preferred Usage: Essentially meaningless campaign rhetoric used to describe judges who toe the right-wing corporate line, e.g., “I hope they follow the law, instead of making it, and cut our jury verdict down to a price that won’t cost us so much freedom of speech.”
“Free Market” — Right-Wing Usage: Large corporate ownership of business endeavors and profits combined with no government regulation except for public assumption of the risks and costs of business failure, corruption and blunder by friends of the Republican Party, e.g., “The Wall Street bailouts involved trillions of dollars of public money when the subprime scams went bust, but they were a great victory for the free market”; “When Massey Coal managed to take over the regulatory agencies and deregulate the coal industry, it was a great day for free market principles, but it was unfortunate how all those miners died because of that terrible unforeseeable accident when the mines mysteriously collapsed.” Preferred Usage: What most big businesses fear above all else: free commerce among individuals in a society where corporations are not subsidized and cannot corrupt government and where public goods like education and the environment are aggressively protected, e.g., “It’s not just Wall Street – most mega-corporations in the military-industrial complex, the pharmaceutical industry and the energy sector could never survive in a free market without state aid.”
“Freedom of Speech”— Right-Wing Usage: 1. Massive corporate spending in election campaigns, e.g., “For many decades before the Citizens United decision, freedom of speech was routinely prohibited by the government and the people, but now freedom of speech is safe and sound, as you can tell from what the Super PACs did to Newt Gingrich in the Iowa caucuses, to Mitt Romney in South Carolina, and to Gingrich again in Florida”; 2. The right of health insurance companies and pharmacies to sell information about what drugs physicians are prescribing their patients and for what illnesses to pharmaceutical companies, as in Sorrell v. IMS Health Inc. (2011), e.g., “I really resented Justice Breyers’ dissenting opinion about freedom of speech in Sorrell where he argues that the Roberts Court is manipulating the First Amendment in the same way the Lochner Court manipulated Due Process in order to invalidate laws regulating business.” Preferred Usage: the right of the people to speak, publish, write, assemble, organize and petition even in the face of government and corporate repression, as in Marsh v. Alabama (upholding the right of citizen petitioners to appear in public settings in corporate-owned “company towns”), e.g., “Although the champions of corporate political power on the Roberts Court have convinced themselves that they are civil libertarians, they have no interest in protecting the freedom of speech of public employees, union organizers, whistleblowers and high school students, real people who face a growing onslaught of bureaucratic and corporate censorship.”
“Judicial Activism”—Right-Wing Usage: The exercise of constitutional judicial review by the Supreme Court for purposes other than protecting corporate power or advancing the interests of the Republican Party, e.g., “even after five decades, Newt Gingrich still can’t believe those nine judicial activists in Cooper v. Aaron unanimously decided to enforce school desegregation against ‘massive resistance’ and openly declared that the Supreme Court’s view of Equal Protection is supreme to that of George Wallace and Orville Faubus and other Southern Governors,” or ”we can’t put those homosexuals in jail in Texas anymore because of those damned liberal judicial activists.” Preferred Usage: Betraying a constitutional oath and disregarding constitutional law to impose the Court’s choice for president of the United States on the nation through a 5-4 decision or imposing a racial double standard on legislative redistricting by striking down state plans that enable majority-African American or Hispanic congressional districts, declaring new political rights for corporations not rooted in original intent, precedent or language, or overriding statutory law and majority will to serve the interests of corporate power, as in Exxon Shipping Co. v. Baker (2008), which slashed the jury verdict against Exxon for its outrageous negligence in the Valdez spill, e.g., “it was not surprising when the same judicial activists who made George W. Bush president, gave corporations political rights and struck down many of the first majority-African American congressional districts in the South since Reconstruction also found that they could not do anything about the disenfranchisement of 600,000 Americans living in the District of Columbia, because this obviously would have been an inappropriate interference with the political process.”
“Legislating from the Bench”— Right-Wing Usage: Interpreting Constitutional language in a way that is inconsistent with the Republican Party platform or Tea Party dogma, e.g. “When that federal judge refused to strike down Obamacare, he was legislating from the bench, just like the Supreme Court legislated from the bench when it struck down the practice of forcing public school teachers to lead their students in sectarian religious prayers in the classroom.” Preferred Usage: The practice of right-wing judges mangling and rewriting statutes to accomplish purposes never contemplated by legislatures, as in Ledbetter v. Goodyear Tire & Rubber Co. (2007), when the familiar 5-4 majority found that, under Title VII, the female victim of decades-long pay discrimination who learned of it at the end of her career could not sue since the discrimination had begun more than 180 days before her court filing and the statute of limitations had therefore run, or Exxon Shipping Co. v. Baker (2008), wherein the Court reduced a punitive damage award of $2.5 billion in one of the worst environmental catastrophes in history to $507 million by inventing a new 1-1 ratio of punitive and compensatory damages in maritime tort cases—a formula found nowhere in statute and invented out of whole cloth, e.g. “when the Roberts Court legislates from the bench, it’s not only exciting and unpredictable but very good for the 1%!”
“Original Intent”— Right-Wing Usage: The constitutional philosophy that the Supreme Court should adhere strictly to any evidence that can be found of any of the Framers’ original intentions, but only if such intentions bolster right-wing political commitments, e.g. “sure, the Framers saw corporations as artificial entities totally subordinate to government without any independent political rights, but the original intent of the Framers is irrelevant to interpreting the First Amendment when we have five votes lined up to entrench corporate power”; “yes, the Framers of the Fourteenth Amendment themselves authorized race-conscious remedies, like the Freedmen’s Bureau, which transferred resources to African-American institutions and citizens, but we never consult the original intent of the Framers of the Fourteenth Amendment when we examine racial wedge issues like affirmative action or voting rights because this is our big chance to show that we’re not politically correct!” Preferred Usage: An important interpretive doctrine that can help to clarify the meaning and purposes of constitutional language, but no talisman since intentions are themselves often ambiguous, contradictory and inscrutable, and since law is always defined in the dialectic between preexisting language and ideas and unexpected new situations. “The ‘original intent’ of the Framers of the Fourteenth Amendment in 1868 does not appear to have included dismantling governmental policies that discriminate on the basis of sex but the Fourteenth Amendment Equal Protection Clause does refer to ‘persons’ and even most conservatives today, including Justice Scalia, grudgingly accept that this language should be read to address official sex discrimination because sex discrimination is a major assault on civic equality and therefore antithetical to the purposes of Equal Protection .”
“Prayer in the Public Schools”—Right-Wing Usage: The practice that is the heart of a liberal arts education, wiped out completely by the Supreme Court in Engel v. Vitale (1962), leading to the total downfall of American culture, e.g. “when those crazy radical Justices, voting 6-1 and led by Justice Hugo Black, struck down official religious prayer in the public schools, history suddenly took a terrible turn for the worse and we went from Jim Crow segregation and sex discrimination to really bad things like civil rights, gender equity, and gay rights.” Preferred Usage: A perfectly lawful activity so long as it is not compulsory or directed by principals, teachers or other public officials, e.g. “as long as there are pop math quizzes and senior proms, there will be prayer in the public schools.”
Justices Antonin Scalia and Clarence Thomas — Right-Wing Usage: What all justices should be like, justices who can courageously decide a presidential election when necessary by disregarding all essential and original principles of constitutional law and then, like Justice Scalia, tell critics to “Get over it.” E.g., “They may be demolishing the Bill of Rights and sanctifying corporate power, but Justices Scalia and Thomas are truly men of God.” Preferred Usage: Servile corporate justices who create a continuing nightmare for civil liberties, civil rights and popular democracy while pompously lecturing everyone else on their fidelity to the Constitution.
“Tort Reform” — Right-Wing Usage: The movement led by the Chamber of Commerce, Karl Rove and other good friends of the free market to protect large corporations against unjust jury verdicts, greedy trial lawyers, Due Process and annoying prospect of being held accountable in court, e.g. “It was a great day for tort reform when the judicial activists on the Supreme Court, in Philip Morris USA v. Williams (2007), wiped out a $79.5 million punitive damage jury award against the tobacco giant for misleading consumers and deliberately suppressing the truth about the health effects of smoking, on the excellent new theory that Due Process forbids juries to consider harms caused to the whole public as opposed to the specific parties in the case”; “If those state judges don’t get with the program on tort reform, we’ll have to get some big corporations to use millions of dollars’ worth of free speech to defeat them at the polls.” Preferred Usage: A sophisticated propaganda campaign paid for by corporate America to protect large corporations from fair trials and Due Process for plaintiffs in order to avoid paying the costs of their negligence, recklessness and deliberate civil wrongs, e.g., “The Supreme Court handed advocates of tort reform another victory when it made it impossible for women workers at Wal-Mart to organize a national class action suit in Wal-Mart Stores, Inc. v. Dukes,” “If you want to see the definitive documentary exposing and exploding the phony-baloney tort reform movement hatched by Karl Rove, check out the remarkable film Hot Coffee by Susan Saladoff.”
“Wall of Separation between Church and State” — Right-Wing Usage: Something that does not exist, has no basis in constitutional history or language, has never been violated yet also must be demolished immediately. “Jefferson was a heathen and infidel who hypothesized a ‘wall of separation between church and state,’ but his views were aberrant and had nothing to do with the First Amendment.” Preferred Usage: The organizing metaphor for constitutional treatment of church-state issues, drawn from a passage in Thomas Jefferson’s famous Letter to the Danbury Baptists of 1802, e.g., “This belief in the wall of separation between church and state is making it hard for us to funnel public tax dollars into sectarian religious groups.”
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