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Court of the People?


Illustration by: Matt Mahurin

Democratic presidential candidates rarely mention the courts, while Republicans talk about them all the time. The reason is obvious: Both sides believe talking about the courts raises socially incendiary issues like abortion and gay marriage that can hurt Democrats and help Republicans.

Democrats needn’t be so frightened. Most Americans now worry more about health care, Social Security, retirement benefits, product safety and global warming than about whether gays get a marriage certificate. The courts play a crucial role in these matters, and the reactionary views of Chief Justice John Roberts and his allies on both the Supreme Court and the lower courts threaten to shred whatever benefits and protections these laws provide.

But thinking about the courts is important to do now. The next president will probably have two, maybe three, appointees: Justice John Paul Stevens is nearly 88; Justice David Souter, 68, is eager to return to New Hampshire, and Justice Ruth Bader Ginsburg, 75, has had cancer. Numerous vacancies on the lower courts are also inevitable. The appointments that the next president makes could shape the federal judiciary for decades.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-300x300.jpgIllustration by: Matt Mahurin

Though most public attention has focused on the social issues, these cases come before federal judges only occasionally, and have not been the primary target of conservative and right-wing judges. A more frequently pursued goal — and one that rarely receives attention — is shutting the court house door to those wrongly injured by public officials and others.

This effort began in earnest in 1972, when the late Chief Justice William H. Rehnquist and Justice Lewis Powell advanced to the court. In the 80s, the Reagan-Bush appointees, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O’Connor, joined in. These justices overturned prior decisions, concocted or expanded restrictive constitutional theories and interpreted federal statutes in ways Congress never intended.

Here are a few examples:


Persons who can show they have actually been injured by unlawful conduct have “standing” — the right to sue — in federal court. Shortly after Rehnquist and Powell joined the high court, four narrowly decided cases denied taxpayers and citizens the right to judicially enforce the constitutional requirements that all government expenditures be made public and that no member of the armed forces –- like Sens. Barry M. Goldwater and Lindsay Graham, reserve military officers –- may serve in Congress.

Two other decisions prevented welfare recipients from challenging the IRS’s failure to require non-profit hospitals to serve the poor if they wanted a tax exemption, and threw out suits by low- and moderate-income residents of Rochester, N.Y., who challenged a suburban zoning law effectively keeping them out of the suburb. Then, in 1984, a 5-4 majority ruled that children in formerly segregated schools in seven states could not challenge the Reagan administration IRS’s grant of tax exemptions to local private schools that excluded black children, allowing whites to avoid desegregation. Later cases have narrowed standing even further. Last June, a 5-4 decision blocked a suit against some of President George W. Bush’s faith-based initiatives.

** Preemption**

When Congress passes a statute, it may want to exclude any state involvement. Until recently, a concern for states rights, long a favorite of the right, usually resulted in not barring state involvement in enforcing a statute — unless Congress made clear it wanted to keep the states out. But when state law is more protective of consumers, workers, investors and others than the federal law, that has now changed.

Just last week, the Supreme Court ruled that Medtronic, the maker of a catheter approved by the Food and Drug Administration that exploded and killed a patient, was immune to a state damages suit (there is no federal right to damages). Sen. Edward M. Kennedy, the Senate sponsor of the bill, and Rep. Henry A. Waxman, who was on the House Committee that wrote the federal law on medical devices, protested angrily. Kennedy said, “Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by defective devices.” The decision will result in blocking many personal injury suits for heart stents, breast implants, artificial hips and other devices that prove defective.

Medtronic is not the only such decision. The court barred state law suits in cases involving efforts to limit tobacco advertising to minors, as well as suits by defrauded investors, retirees, automobile accident victims and others.

** Private suits to enforce federal statutes**

In some cases, Congress doesn’t make clear that beneficiaries of legislation, like Medicare, Medicaid and anti-discrimination laws, may sue for violations of their rights under those laws. It is often obvious, however, that they should have that right: government agencies move sluggishly, and no one has more of an interest in pursuing a matter than the intended beneficiary.

Decisions during the 1970s and 80s, a period that Scalia recently called “the bad old days,” reflected this attitude. The courts authorized suits by those injured by public or private misconduct unless the law indicated otherwise. Recently, however, the Supreme Court’s conservative wing has made it clear that, in Roberts’’s words last week, there is a “new approach to statutory interpretation” and potential plaintiffs will not be allowed to sue unless Congress explicitly says they can. This will require changing numerous statutes passed on the assumption that private suits would be allowed. In today’s gridlocked Congresses, that will be difficult.

** Attorneys fees**

Many victims of civil rights and other violations are too poor to pay for a lawyer, and few lawyers are eager to take such cases, especially if there is little money. Congress, therefore, decided to reverse the usual rule that each party covers its own costs and require the award of legal fees in civil rights cases to the “prevailing party.”

Here, too, the court has ignored what Congress intended. In 2001, a 5-4 majority relying on a dictionary definition of “prevailing party” ruled that if the defendant abandons its wrongful conduct in response to a suit, but there is no favorable judgment or court-ordered settlement, no fees will be awarded to the plaintiffs’ lawyers– though the suit brought the plaintiffs all they wanted. All but one federal appeals court had ruled the other way. In response to the decision, former representative Father Robert Drinan, floor manager for the attorneys fee legislation, complained that the decision “sets aside the explicit directives of Congress” [letter WP 7/31/2001]. The decision encourages defendants to stall, run up the costs and, if they then expect to lose, change their policy before trial.

** National Security**

The most recent attempt to shut the courthouse door is the White House effort, supported by many Reagan-Bush judges, to block any judicial scrutiny of the administration’s actions toward detainees at Guantanamo, trials of alleged war criminals by military commissions and the government’s warrantless electronic surveillance. But for the drift to the other side by Justice Kennedy, this effort would have succeeded. For many of the Bush-Reagan appointees on both the Supreme Court and the lower courts have given the administration all, or almost all, of the shield it wanted — often extending state secrets and judicial deference principles far beyond prior decisions. Because some of these cases are still pending, the outcome of this effort is still uncertain.

These doctrines and stratagems are all judge-made and reopening the courthouse doors to citizens seeking some justice will require a radical change in the makeup of the federal judiciary.

If Sen. John McCain wins, however, he is most likely to continue the Reagan-Bush model — if only because he is sure to anger the right-wing in his party and he will need to appease them. Indeed, Dr. James Dobson has already announced he will not support McCain because the senator helped broker a deal on judicial appointments in 2005. McCain has how been advised to stress his intention to nominate judges like Roberts and Alito, which he has already begun to do.

Voters should keep this important role of the courts in mind — no matter what the candidates do or don’t say.


Herman Schwartz, a professor of constitutional law at American University, is the author of “Right Wing Justice: The Conservative Campaign to Take over the Courts” and “The Rehnquist Court: Judicial Activism on the Right.”


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