Think Progress

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ryan Powers, Nate Carlile, and Ian Millhiser

A Conservative Court in a Progressive Era

For decades, conservatives have used their dominance of the judicial branch to push an agenda that could never pass in the elected branches. In recent years, the Supreme Court granted health insurers and medical device manufactures sweeping immunity from the law. It forbade school boards from racially integrating public schools, audaciously citing Brown v. Board of Education in doing so. And it repeatedly cut back the rights of workers and voters to be free from discrimination. The recently-concluded Supreme Court term was no exception, with workers, voters, and the environment all suffering big loses before the nation's highest Court. Despite these decisions, however, the Court also left unresolved a number of new and radical claims raised by right-wing advocates. In other words, as bad as the current term's decisions were, the worst may be waiting on the horizon.

A BANNER YEAR FOR POLLUTERS: No one fared worse before the Court this term than Mother Nature. The justices heard five environmental cases, and they sided against defenders of the environment in every single one. Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life, it absolved from liability a chemical company that for years, allowed pesticides to spill into the environment, and it erected new obstacles to environmental organizations challenging federal environmental policy. In what may be the most shocking environmental decision this term, Coeur Alaska v. Southeast Alaska Conservation Council, the justices upheld a mining company's plans to dump millions of tons of mining waste into a pristine lake -- a plan that would eventually kill the lake's fish and nearly all of its other aquatic life, decrease the depth of the lake by 50 feet, and flood the surrounding 40 acres of land with lead and mercury-laden water. As Justice Ruth Bader Ginsburg explained in her dissent, the majority's opinion in Coeur Alaska allows "[w]hole categories of regulated industries" to "gain immunity from a variety of pollution-control standards."

DISREGARD FOR PRECEDENT: The other big loser this Supreme Court term was the law itself. The justices expressly or implicitly overruled at least four long-standing precedents, cutting back on the rights of criminal defendants awaiting trial, unionized workers, and older Americans in the process. One of the Court's most egregious cases, Gross v. FBL Financial Services, dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment.  Moreover, as Justice John Paul Stevens explained in his dissent, Justice Clarence Thomas's 5-4 decision in Gross showed "utter disregard for...precedent and Congress' intent," because it flat-out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result. For his part, Thomas did not even try to justify his disregard for precedent, stating simply that "it is far from clear that the Court would have the same approach were it to consider the question today in the first instance." Apparently, precedents no longer apply whenever the Court's five conservative members disagree with them.

THE BREWING STORM: As troubling as these decisions are, in many ways the biggest story this term is what the Court did not decide. Although the Court held in NAMUDNO v. Holder that voting districts that have historically engaged in discrimination should have an easier time "bailing out" of the Voting Rights Act's requirements, it expressly declined to consider whether a key provision of this Act should be declared unconstitutional. Similarly, although Ricci v. DeStefano made the novel claim that the federal ban on covert race discrimination may itself be a form of discrimination, the Court rejected Justice Antonin Scalia's suggestion, in a separate concurring opinion, that this ban should be struck down. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint, and far more likely that the four most conservative justices are still unable to find the fifth vote to strike down landmark anti-discrimination laws. Unfortunately, the same cannot be said about campaign finance. Breaking from its traditional practice of deciding every case argued in a given term before adjourning for the summer, the Court left campaign finance case Citizens United v. FEC undecided. Instead, the justices issued a brief order asking the parties to brief whether a landmark precedent limiting the influence of corporate money in politics should be overruled. Should the Court overrule this precedent -- an outcome that seems likely -- existing laws limiting the influence of corporate money in politics could simply cease to exist. By 2010, candidates for public office may not only need to compete against their political opponents; they may also find themselves in a no-holds-barred political fight with well-heeled corporate political players.

Examiner reporter wonders whether "illegal alien" voter fraud helped Franken win.

Senate moderates are reserving their right to filibuster.

Sen. Jim DeMint (R-SC) on the Honduran coup: It was "no more a coup than...Al Franken's election to the Senate."

NARAL President Nancy Keenan warns that "many, many women could lose the coverage they presently have" if anti-choice amendments are added to health reform legislation.

Declaring the end of war (as it's "classically understood").

Andrew Breitbart's Big Hollywood celebrates its six-month anniversary with "articulate" and "persuasive" content like Victoria Jackson's claim that President Obama "can legally kill Grandmas."

Correcting the "highest-grossing movie of all time" record.

Ohio's presidential disapproval in context.

"The one thing this administration won't do is cut taxes."
-- The Wall Street Journal's Stephen Moore, 7/07/09

VERSUS

"[T]he $787 billion American Recovery and Reinvestment Act included $288 billion in tax relief, including the Making Work Pay tax credit, an annual credit of $400 per individual or $800 for families."
-- Media Matters for America, 7/08/09