Tuesday, June 26, 2007

Rehnquist's triumph

In 1937, the Supreme Court decided West Coast Hotel v. Parrish, the case in which the majority blinked and accepted the New Deal measures designed to lift the nation out of the Depression. Before that, the court and its membership had been a galvanizing issue for liberals and others on the Left. The current court's recent decisions will return its membership and its philosophy to first-rank status among issues that liberals, progressives and even moderates care about. Yes, I know that pro-choice forces have long warned of what would happen if Republicans were permitted to continue packing the courts with anti-abortion ideologues, but the hard-right decisions of today's court will mobilize many more people.

In a series of cases over the past few months, the court has decided that corporations, PACS and others with money have free speech rights, that high-school students don't, and that taxpayers can't sue the President to enforce the First Amendment's command to separate church and state. Earlier, the court further limited shareholders' ability to sue brokers and investment bankers for fraud, upheld a ban on so-called partial-birth abortion, ruled that a woman could not sue for equal pay because she had waited too long since her last (unequal) raise, and told a prisoner that he could not appeal because he had made the mistake of believing a federal judge's calculation of the date by which the appeal had to be filed.

Taken together, these decisions--most by a 5-4 majority--reveal the triumph of the late Chief Justice Rehnquist's philosophy, although the use of that word implies the presence of an over-arching set of principles that is absent from the court's reasoning. The rule of decision that the late Chief Justice followed, and which is a pretty good guide to the present court's decisions on important issues, is this: When an individual goes up against the government, the individual loses; when an individual goes up against a corporation, the individual loses; when the government goes against a corporation, the government loses.

For decades, the membership of the federal courts has galvanized the Right. Now it's time for the Left to take up the cause of principled decision-making that the Supreme Court has largely abandoned on important issues.

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