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Tomasky reports: "Republicans like to denounce the so-called extremism of the liberal Warren Court. But the 5-4 decisions of the Roberts Court are the most divisive in American history."

Supreme Court Justice Antonin Scalia. (photo: AP)
Supreme Court Justice Antonin Scalia. (photo: AP)

Radicals on the Supreme Court

By Michael Tomasky, The Daily Beast

21 June 12


s we gather in our respective bunkers awaiting the white smoke from the Supreme Court, I thought a little history discussion might be in order. We’ve heard conservatives say many times that the Warren Court overreached, legislated from the bench, and divided America. It’s typically called the most controversial court in American history, and we know the reasons why. But the numbers tell a very different story. Even though Roberts has reigned on Maryland Avenue for just seven years as opposed to Earl Warren’s 16, the Roberts nonet (more accurately, quintet) has issued far more aggressive and in-your-face 5-4 rulings on controversial and high-profile cases and done far more to divide the country. I don’t know what they’ll do on health care, but they already deserve to displace the Warren Court in the controversy sweepstakes.


Tim Sloan / AFP-Getty Images

First I looked at eight representative and major Roberts Court decisions in hot-button issue areas.

Race: Parents v. Seattle & Meredith v. Jefferson, which began as two cases and were eventually combined into one, also known as the Seattle/Louisville desegregation case. The Court ruled that local school districts basically couldn’t do anything to ensure racial diversity in their schools.

Abortion: Gonzales v. Carhart upholding the federal partial-birth abortion ban.

Campaign finance: Citizens United vs. Federal Elections Commission, which prohibited restrictions on many independent expenditures; also McCain v. Wisconsin Right to Life, which weakened key provisions of the McCain-Feingold law.

Equal Rights: Ledbetter v. Goodyear, which made it harder for (female) employees to sue employers on equal-pay grounds.

Free Speech: Morse v. Frederick, the so-called Bong Hits 4 Jesus case, in which the court limited free-speech rights of students.

Punitive Damages: Philip Morris v. Williams overturning an Oregon court’s smoking-based award to one ex-smoker.

Immigration: Lopez v. Gonzales, which ruled that a non-citizen can’t be deported for committing a drug crime that’s a misdemeanor under federal law even if it might be a felony under state law.

That’s eight cases (two in the campaign-finance realm). Seven of them—all but the last one—were 5-4 decisions. Exactly the same five in the majority, and exactly the same four in the minority. (Lopez was 8-1, supported by all but, yes, Clarence Thomas.)

Then I went back and looked at eight historic hot-button Warren Court rulings. Judging from the way the media write about these things today, you’d think these decisions were all narrow and highly contentious. In fact, of the eight, only one was a 5-4 ruling. Before I get to explanations, let’s look at vote tallies.

Brown v. Board of Education was decided 9-0. Ditto Times v. Sullivan, the famous First Amendment case that made it harder for public figures to sue for libel. Gideon v. Wainwright, which established the right to counsel if the accused couldn’t afford it? Now we’re getting into criminal procedure, the old “soft on crime” charge. Surely this one was more contentious? Nope. It too was 9-0. Ditto Loving v. Virginia, which struck down Virginia’s ban on interracial marriage, another goose egg. That’s a heck of a lot of change with no dissent.

In the 1960s, Nino Scalia would’ve been giving crackpot speeches on a marginal rubber-chicken circuit, not imposing his 16th-century will on the country from the highest court.

Griswold v. Connecticut, the highly controversial 1965 precursor to Roe v. Wade, which started to sketch out a right to privacy, was a 7-2 decision. As was Roe itself. That’s right—the evil Roe, not a close call. Baker v. Carr, the one-person, one-vote ruling, was a 6-2 decision. Finally, only one, Miranda v. Arizona, was a hotly contested 5-4, and it was indeed immediately controversial.

I admit there are some limits to what this proves, given the many different personalities who served as justices, especially during the long Warren era. But at a minimum, my comparison proves this: the Warren Court, so often accused of recklessly imposing radical new rules on an unsuspecting American society, was often operating instead on the basis of a pretty broad consensus that was both legal and in many cases societal. Most of the rights the Warren Court expanded were supported by majorities then and are still supported by majorities now.

Some of its decisions were immediately controversial because of vocal and politically powerful minorities—Miranda (law-enforcement professionals), Roe (the nascent religious right), Brown (the South). But Warren worked to get consensus on many cases. On Brown, when he was new to the court and sitting for nearly the first time among towering figures like Robert Jackson, Felix Frankfurter, and William O. Douglas, Warren had a simple majority in support of overturning Plessy v. Ferguson on the first go around the table. But Frankfurter’s allegiance in particular to that point of view wasn’t completely clear, wrote Jim Newton in Justice For All: Earl Warren and the Nation He Made, and Warren “wanted a solid court, ideally a unanimous one, to speak with a single, clear voice on a matter of moral urgency.” He waited, hosted more discussions, and the nine votes eventually came around.

Conservative readers will here blame today’s liberal bloc for the fact that we don’t get such consensus today, but the reality is that once Roberts and Samuel Alito hit the bench, the Federalist Society clock started ticking loudly: We’ve got our five now, boys, and we don’t know how long we’ll have them, so let’s get moving. Desegregation? Boom, 5-4! Equal pay? Bang, 5-4! Campaign finance? Zap, 5-4! And so on. The express point has been to radically remake society, without a hoot of concern about whether it was being done by five or seven or nine. In fact, to most conservatives, if a decision infuriated the Court’s four liberals, so much the better.

Some might argue here that I’d better just face the fact that the country has gotten more conservative. On a few things, yes—fiscal matters, certainly, and probably criminal justice. But on most matters that are court controversies, America has if anything become more liberal than it was 40 years ago. Certainly racial attitudes are far more liberal. But more liberal racial views didn’t stop Roberts’s bullheaded little majority from telling Seattle and Louisville that even though they had agreed to racial-mixing plans and were perfectly happy with them, they still couldn’t carry them out.

So no, we’re not “more conservative.” The main thing that changed between then and now, instead, is that rabidly right-wing billionaires started throwing many millions of dollars into politics, forming and funding groups like the Federalist Society, which have managed to assert their will. They represent about the same 30 percent they represented back when Barry Goldwater won the GOP nomination. It’s just that now they’re organized and lavishly backed, whereas before they weren’t. In the 1960s, Nino Scalia would’ve ended up teaching at Notre Dame law school (where he belonged)—a crackpot speaker on a marginal rubber-chicken circuit that mainstream America could have blissfully ignored, instead of sitting on the highest court in the land imposing his 16th-century will on the rest of us.

And so: If we get a 5-4 ruling against the Affordable Health Care act or any part of it, this is the context to keep in mind. It will be another in a series of ferociously ideological one-vote-margin decisions from the court that we do not need history’s perspective to decide is far and away America’s most ideological. your social media marketing partner


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-11 # LonnyEachus 2012-06-21 22:20
I am rather amused by the comment made by Holyone, but he/she actually does sort of have a point.

But to the matter at hand: I freely admit that I am vehemently opposed to many of the recent SCOTUS decisions, "Citizens United" among them. I think that clearly the current court has ideology confused with rights and legal principle.

On the other hand, that is why I have to ask: why did the author even bring up "health care"? If Tomasky wanted to talk about blatantly un-Constitution al things, he could not have picked a better example to mention, if only briefly. Let's get real. It's not even in the Constitutional ballpark. It's more like a giant park designed for Special Ed Little League.

Screw ideology. Obamacare is not just a little, but BLATANTLY unconstitutiona l, on at least several different levels. If you honestly don't think so, then your own ideology is showing through. Like a huge red flag.
-12 # 4merlib 2012-06-22 00:12
Of course we know that these decisions would not be at all divisive if the rulings were 5-4 the other way.
+6 # Vardoz 2012-06-22 00:24
They are willing to sacrifice justice. rights and freedoms for corporate favoritism. The people will suffer and our economy and futures will suffer from the damage they have done.They are on the side of the mafia culture of robbery at any cost.
+5 # humanmancalvin 2012-06-22 03:45
Bottom line: A President Romney would have the opportunity to stack the court even further to the extreme right. There would not be enough buckets available to bail out the boat of radical right rulings if that nightmare happens.
A Democratic president needs a super majority in both houses in order to perhaps try to effect change so with absolute necessity vote pure D Blue. Period. No whining just help save this country from further assault by these blatant haters of the American way.
-8 # brucbaker 2012-06-22 04:13
The way the court leans towards decisions is also based upon .. their personal views of how to interpret the CONSTITUTION... isn't it though?

The moral fiber of each judge, the way they view how the laws affect the people in general, and how they THINK their interpretation of the law will be followed determines any decision the Supreme Court will make, and I think .. maybe ... America has lost it's way in figuring out .. RIGHT AND WRONG.

When the SUPPOSED RIGHT is judged as radical ... the left is supposed to be the CONSTITUTIONAL CONSERVATIVES.. is that what this article is NOW SAYING? Or .. is it another slander, propaganda, and article that is TELLING YOU WHAT TO THINK... this is our opinion of HOW you should think? Is that the purpose of the roundabout confusion to get you to be against the repeal of Obama-care so it RE-LEGISTATED and RE-WRITTEN the proper way so it is NOT a LEAD BALLOON dragging down the USA DEBT even further?

Oh well .. just a thought .. How about we EXAMINE the subject matter .. READ the whole bill on Obama-care... make notes .. and learn .. for yourself .. first hand .. how terrible this Obama-care bill really is, how about that?
+3 # paulrevere 2012-06-22 13:36
The US health care bill is in the neighborhood of just north of TWO TRILLION dollars per year.

Medicare has an overhead admin cost of 2-4% depending on who is doing the indicting of this great 'socialist' program.

I must note, that like Social Security INSURANCE, Medicare INSURANCE is paid for by each individual. One huge pool of money by all, paid for each paycheck, by more and no less than what insurance companies do and without their extra 25-30% gouge.

Capitalist health care has an admin and profit charge in the range of 30%+/-.

Lessee here...$600 billion a year at the long end and even if that is off by 50% and 'only' $300 plus billion in corporate costs passed on to the rate payer.

Medicare at 4%, the long end, accounts for just...well, you do the math as I am a bit selfconscious about having to even mention this kind of disparity in an intelligent discussion.

Time to reclaim our health in this and so many other venues as a nation.
+4 # tabonsell 2012-06-22 16:30
Judges should base their decisions on what the Constitution says, not what their personal or political views may be.

A case in point which they let their political views override constitutional meanings was the Indiana voter ID bill that they upheld.

The Constitution says congressional laws are to be "necessary and proper." The 14th Amendment passes that onto the states where it says "No state may make or enforce any law which abridges the privileges and immunities of citizens of the United States..." Voting is a privilege.

The attorneys who argued for Indiana's law admitted there had never been a case of any one convicted of voting under another person's identification. The law was not necessary. The law prevented many people from voting although they were qualified in all manners except they may not drive and didn't have a driver's license. The law was not proper. But this court dismissed these constitutional principles with the statement that the law imposed only a "minor inconvenience."

Even in the worst decision in history, Plessy v. Ferguson that gave use "separate but equal" BS, the judges said we may not pass a law just to harass our neighbors. But the GOP is doing that all the time.
-19 # barry 2012-06-22 05:54
Thank God we have the 5 conservative judges on the court. Can you imagine what would happen to this great country if it tips the other way....
+4 # paulrevere 2012-06-22 13:36
barry...the joker. lol, good one dude!
-3 # DofG 2012-06-22 22:45
Since our political paradigm was constructed to be an impersonal-non- ideological- arbiter of cultural balance, insures that it will ultimately tip the "other way"!
-4 # rockieball 2012-06-23 08:19
Tis would be a far better world.
+2 # Carbonman1950 2012-06-23 22:19
Not only can I imagine, I can remember back to the time before right-wing extremists took control of the Court and the Court ruled in ways that made this country stronger, better, more moral. I hope to one day see the "conservative" majority gone from the Court, so that the United States of America can rejoin the march to greatness on from which, sadly, it was diverted in 1981.
-5 # phantomww 2012-06-22 10:49
Wonder why the author did not use the 5-4 Kelo v City of New London where the liberals on the court ruled the government could take the private property (house) of one individual and give it to another (in this case a corporation). Until then emminent domain was used to take peoples property for things like roads, parks, schools ect. But no, liberals are all for making government more intrusive and all powerful over our lives.

Lots of complaining about Citizens but NEVER a word from libs about Kelo.
+6 # Buddha 2012-06-22 12:10
I am a liberal/Progres sive and I will admit that this was a HORRIBLE ruling from the "liberals" on the SCOTUS. Us on the Left rightly believe eminent domain is necessary for construction of a public good like a hospital or road...but to rule that handing private property over to a developer so they can build new private housing more expensive than the previous value of the property, just so the city can get higher tax revenues, really is a stretch for "public good". It effectively leads to people in old houses, often the elderly who have lived in that home their entire lives (and may even have been BUILT by some deceased husband), being forced to accept a pittance far less than the true emotional value of the home, the home seized, and grandma put out in the street. Sorry, but that just isn't right.

C'mon fellow Progressives, phantomww is right on this ruling. If we are going to rightly call out the Right for their very idiotic policies, we have to be willing to look at ourselves in the mirror and admit when "our side" makes a really stupid decision or policy, otherwise we are just as bad and partisan as the GOP. We have to be better than them, and the ability to face the truth has to be part of that.
+3 # paulrevere 2012-06-22 13:39
Kinda like that town in Michigan that lost it's privately granted, in perpetuity beach front a golf course...privat e golf course of cours.
0 # phantomww 2012-06-22 21:50
Wow, nice to see a lib/progressive say something against the libs on the SCOTUS. As a conservative, I honestly think that there are several areas that both sides can agree on and we should work together to get somethings done. We will always disagree on most items, it is the nature of one being a lib and another being a conservative. Both sides get hung up on name calling.

Tell you what, I think that big govt means less liberty. I am willing to agree to downsize govt and keep it out of your bedroom if you will keep it out of my wallet.

BTW, limited govt does not mean NO government and less taxes does not mean NO taxes.
0 # paulrevere 2012-06-23 09:28
I like your open mindedness next assertion to you would be that you are beating up so called 'big government' and neglecting to analyse cause.

Fiscal is the bain of all things public as once the money issues are directed to the COMMON GOOD of WETHEPEOPLE, things become much more obvious. We then are more 'free' to prioritize.

Consider...53% of WETHEPEOPLE's 'yearly' DISCRETIONARY spending is appropriated by defense (Dept of War) and directed by a very foggy 'big government' entity staffed with turncoat acolytes of the industrial/corp orate complex which profits therein AND in point of fact continues their reign of greed spiked by doses of terror propaganda and lies.

By any measure, that % of the tax pie is beyond reason when contrasted to the needs of the common good.

Take a 'reasonable' % of that gouge, redirect it to our border to border coast to coast social needs and that big government is back serving WETHEPEOPLE.

The money is spent per state and administered there (funded mandates) and subject to the demands of WETHEPEOPLE...i .e. oversight and enforced transparency at the local to state level.

Put $200 billion a year to that purpose instead of into that resource consuming black hole called defense.

Police enforcement internationally is reputedly much more effective than occupations and forcing other cultures to homogenize into our consumer driven and ill stereotype.
0 # Carbonman1950 2012-06-23 22:21
I too agree.
+2 # Buddha 2012-06-22 12:00
Actually, imo Lopez v. Gonzales isn't a bad decision. If a "drug offense" is a misdemeanor at the FEDERAL level, it is really minor possession without intent to distribute. And that shouldn't be a crime, period, anywhere.
-4 # BostonPundit 2012-06-22 16:54
Another no-point article from Mr. Tomasky.

He admits that there are limits to what this proves. The fact is it proves nothing.

Also, he wonders what might happen IF we get a 5-4 vote on the health care bill - a sort of admission that he doesn't know what's going to happen whereas a few days ago, he was calling Roberts a liar.

So what's the point, Mr. T? The Court gets certain cases proffered to it with petitions for certiorari. It doesn't choose which cases will be the subject of petitions but it chooses among the petitions because at least 5 judges think the case is worth a look.

Then they hear arguments and consider the briefs and do research.

What should the justices do, vote as they think they see the case or vote to make 9-0 decisions?

Hey, there is division in American society. Supreme Court judges appointed by Presidents serving left and right constituents will appoint liberal or conservative thinkers.

So, you will get divided opinions.

Get over it.
+1 # Carbonman1950 2012-06-23 22:22
He was "calling" Chief Justice Roberts a liar. He was observing the Chief Justice Robert is a liar.
+1 # Granny Weatherwax 2012-06-22 21:23
I can't help but observe that in Citizens United they ruled for "corporations free speech" while in Bong Hits 4 Jesus they ruled against people's free speech.
Anybody else sees a trend?
+1 # paulrevere 2012-06-23 09:10
Trend?...nope.. .a blaring and unethical, legally twisted hypocrisy.
+1 # paulrevere 2012-06-23 12:10
I just found a very interesting set of statistics about the religious make-up of the SCOTUS over it's existence...

32.4% of all justices to serve were Episcopalian as in the Church of England linked with only 1.7% of the US population being of that persuasion.

Next runner up is Presbyterian with 17.6% and 2.8%.

Then Catholic with 10.2% of justices and 24.5% of the US population.

Not to be conspiratorial or anything, but I thought we dumped rule by the English crown/Head of the Church of England/Anglica n way back in the 1700's?

Just sayin'...

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