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Living in a Post Reality-Based Universe

The recent just-before-recess spate of decisions have highlighted an issue that has been festering for a few years with the current Supreme Court majority. With Hobby Lobby, Citizens United, McCullen v. Coakley (clinic buffer zones) and Town of Greece v. Galloway (town hall prayer), the legal community is right to be concerned about a pattern that runs through so many Supreme Court decisions of late, and that is the absence of factual or precedential support. Rather, each of these decisions seems to have been driven by a results-first, logic second approach.

In Hobby Lobby, the court altered its strict scrutiny test by allowing the corporation to define for itself, and contrary to science, what causes an abortion. Moreover, a day later, the court further muddied its decision by declaring that it applied to all forms of contraception, not just the ones the corporation protested, thereby undermining its own “sincerely held belief” justification. A wonderful analysis of the strict scrutiny test can be found here: http://www.patheos.com/blogs/lovejoyfeminism/2014/07/the-hobby-lobby-decision-a-summary-explanation.html. Furthermore, in one fell swoop, the court also tossed aside the separation of powers doctrine, the Establishment Clause and the concept of piercing the corporate veil.

In Citizens United and its follow up, McCutcheon, the court opened the floodgates by declaring money to be identical to speech and not merely a method of broadcasting it, determining that corruption only exists when it is direct, quid pro quo bribery, that no other form of sending money to a candidate will corrupt the political process. Historical examples demonstrating the deleterious effects of unlimited campaign cash mattered not.

In McCullen, the unanimous panel declared the law was not narrowly tailored because it burdened more speech than is necessary to advance the government’s interests in ensuring clinic access and public safety. This flew in the face of the factual basis for this particular buffer zone, significantly smaller than the Supreme Court’s own, which came about after a series of clinic murders. The size of the zone in McCullen, said the legislative sponsor, “transformed the sidewalks outside clinics into ‘a safe, peaceful environment.’ Before, protesters could stand in the clinic doorway, shoulder to shoulder, forcing people to squeeze through. She recalled a visit when a protester screamed at her from just inches away. ‘It was, to say the least, frightening,’ Walz said. ‘That is what is of such concern to us. The court is essentially saying that kind of behavior may resume.’” . Moreover, the entire decision was predicated on this insupportable claim that the protesters were not there to harass but to “counsel.” (http://www.rawstory.com/rs/2014/07/09/abortion-clinic-protesters-are-there-to-harass-not-counsel/)

In Town of Greece, the court declined to apply its own Lemon test to determine if the law had the effect of establishing a religion and decided simply that it hadn’t. In dissent, Kagan wrote: "So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government." The town could have avoided this by simply insisting prayers be non-denominational or by inviting clergy from different faiths to allow equal treatment. In spite of imposing such an obvious, easy, and solomonic remedy, the majority disregarded common sense as well as precedent to give such obviously discriminatory and unconstitutional conduct the green light.

David Dayen observed this tactic in Harris v. Quinn, the overturning of fair share union dues by somehow couching home health care workers as not workers. Dayen outlined the tactic as using the initial case to signal the eventual overturning of precedent in a subsequent case (without any real distinction between the first “signal flare” ruling and its subsequent overturning), the tactic being to simply provide cover for their agenda-driven decisions and maintain some level of credibility. In this manner, the majority is systematically overturning precedent at an alarming rate, leaving only scorched earth behind, the most activist bench in history and there’s nothing we can do.

Clearly, the Roberts court, in its capricious application or non-application of its own standards, in its disregard of the facts presented in the case, lays bare its agenda-driven process. And while we can see the obvious winners and losers in these cases, we all become losers when one can no longer know what the law is anymore. Business decisions, personal and public behavior are determined in part by what we perceive to be acceptable and legitimate. But when facts and reason are no longer reliable guidelines and everything becomes subject to the whim of five unelected, life-tenured individuals, society becomes tentative and fearful. Businesses will increasingly have to rely on graft and corruption to ensure that their actions will not fall on the wrong side of the court’s scrutiny while the rest of us will have to rely on luck. There are historical examples for this, and they are notorious, such as the lettres de cachet of 18th Century France, the reign of Richard II in England, or Czar Nicholas of Russia. Governance built on caprice cannot sustain any sense of legitimacy, whatever the charades that game the voting process. Sooner or later, the uncertainty, not to mention the obvious unfairness, causes cracks in the social fabric.

While Roberts thinks he can keep dressing up his radical decoupling of the legal system, the entire absence of logic and reality is becoming painfully obvious to those outside the legal community. Even tyranny is based on some level of legitimacy, which is what keeps it going. Precedent can crush, as in Dred Scott, or it can liberate, as in Brown v. Board of Education. But the Roberts court is another thing altogether. He may fancy himself to be terribly clever but unless he’s hoping to destabilize this nation, he’s turning out to be the village idiot.


( 1 comment — Leave a comment )
Sep. 2nd, 2014 09:21 pm (UTC)
Today's Tom Tomorrow strip is about the warping of reality by the Supremes as is another article listing discredited or faulty "facts" relied upon by the majority for its ruling (http://talkingpointsmemo.com/dc/supreme-court-dubious-facts?utm_content=buffer899de&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer). You'd think they could do better with a phalanx of law clerks at their disposal. It's going to be hard to claim one's own case is "on all fours" with precedent if that precedent is based on fantasy.
( 1 comment — Leave a comment )

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