Rewinding the Warren Court

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 his 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 through his 1985 job application to the Reagan Administration 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.

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!