Lady Justice is blind but she shouldn’t be deaf and dumb, too. The most egregious decision in the 2008-2009 court term: rejection of the right of prisoners to DNA testing to prove their innocence.
Chief Justice Roberts admitted as much in his opinion for the court, noting the unparalled ability of DNA evidence to prove innocence.
But in one of the most bizarre rationales in the history of the court, Roberts said that this does not mean that “every criminal conviction involving biological evidence is in doubt.”
The five reactionaries interpret the Constitution as they want; let defendents be electrocuted. As Justice Stevens said in dissent: “There is no reason to deny access to the evidence and there are many reasons to provide it.”
Another lamentable decision by the Backward Five eroded the exclusionary rule prohibiting prosecutors from using evidence obtained in an improper police search.
It was an un-American decision. Justice Holmes in a dissent in Olmstead (1928) knew what it meant to be an American. He wrote: It is a lesser evil “that some criminals should escape than that the government should play an ignoble part.”
The Baleful Five also undermined the Sixth Amendment right to counsel, declaring it wasn’t always essential. Stevens bitterly dissented, rightly declaring that defendants must have counsel at every stage of prosecution.
In all three cases the vote was 5-4. In each case Justice Kennedy was the fifth man. Kennedy is the most powerful jurist in America, so often determining the law of the land. But being powerful doesn’t mean dispensing justice.
The Supreme Court constantly overrules decisions by the U.S. Circuit Court of Appeals for the 9th Circuit, the most liberal court in America, Unfortunately, the reactionary Supreme Court has the last word.
And that means environmentalists lost all five cases, including undercutting the Clean Water Act to allow a company to fill an Alaskan lake with mine waste. Kennedy, writing for the majority, said deference must be accorded the company. Justice Ginsburg shot back in dissent: What about paying deference to the Clean Water Act?
In another dreadful ruling, the Five Horsemen of Reaction weakened legal protection against age discrimination. An anguished Stevens acidly dissented: “I disagree not only with the court’s interpretation of the statute but also with its decision to engage in lawmaking.”
In another despicable opinion, the Puritanical Five backed the FCC ban on airwaves expletives. Justice Scalia in his opinion for the court denounced the words “fuck” and “shit” uttered by Cher in a televised awards ceremony. (The priggish Scalia played the silly newspaper game of referring to the f-word and s-word.)
Scalia should read the dissent by Justice Brennan in FCC v. Pacifica (1978): “There are many who think, act and talk differently from the members of this court and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the court to approve the cenorship of communications solely because of the words they contain.”
Expletives deserve First Amendment protection. Stevens in dissent noted the irony of curbing harmless four-letter words while allowing commercials for Viagra, Cialis and Levitra.
On the positive side, the strip search of an Arizona middle school girl was ruled unconstitutional. Justice Souter, writing for an 8-1 court, called it “embarrassing, frightening and humiliating.”
Dissenting Justice Thomas, clinging to the law of the past, said public schools must preserve “order, discipline and safety.” Troglodyte Thomas is probably the worst justice in history. He certainly is the most archreactionary.
Also applaud the court for upholding a grievance of white firefighters in New Haven, Conn. They sued when they passed a test but were denied promotion because black and Latino candidates did poorly. Kennedy, speaking for the court, labeled what it was: reverse discrimination.
Learned Hand, one of the best judges who never reached the Supreme Court, said he would open every session of court with the words of Cromwell: “I beseech you, in the bowels of Christ, to think it possible you may be mistaken.”
Justice Brandeis made the same point. Dissenting in the obscure 1932 New State Ice case, Brandeis warned the court about its enormous power of judicial review: “In the exercise of this high power we must be ever on our guard lest we erect our prejudices into legal principles.”
But that is precisely what the Supreme Court has been doing for decades: making its biases legal principles.
Jake Highton teaches journalism at the Unversity of Nevada, Reno.