Divided high court makes Kennedy pivotal

Fractured. Splintered. Fragmented. Divided. Fissured.
Those words describe the Supreme Court in the 2005-2006 term just ended. More important, the term also confirmed the worst fears of those who opposed the appointments of John Roberts and Samuel Alito: the court grew even more reactionary.
Justice Alito voted with the archconservative Justice Thomas 84 percent of the time in non-unanimous decisions. Chief Justice Roberts sided with another arch-conservative, Justice Scalia, an amazing 88 percent of the time.
Instead of naming a court after the chief justice as is the custom, it is now the Kennedy Court. Conservative Justice Kennedy has become the swing vote. Because of him, the center sometimes held--precariously. But when Kennedy swings Right, as he often does, the Supreme Court rulings make the law of the land backward.
In its wisest and best decision this term, the court struck down military tribunals. But not much good can be said about the bulk of the rulings.
One of the worst decisions was to invalidate a Vermont statute limiting campaign contributions and spending by candidates. The ruling reaffirmed that money is speech, speech that corrupts the political process. It is nothing less than legalized bribery. It reinforces the fact that America is not the democracy it boasts about. It is a plutocracy.
As Howard Zinn, powerful critic of America past and present, puts it:
“No one can stop us from getting up on a soapbox and speaking our mind. We might reach a hundred people that way. But if we were the Proctor and Gamble Co., which made the soapbox, we could buy prime time for commercials on television, buy full page ads in newspapers and reach several million people.
“Freedom of speech is not simply a yes or no question. It is also a ‘how much’ question. And how much freedom we have depends on how much money we have.”
Another blow to this so-called democracy: the court allowed to stand a mid-decade gerrymander by Texas Republicans. The decision was highly partisan, once again proving that the nonelected justices are mere politicans pretending to be impartial jurists.
Texas had already reapportioned seats after the 2000 census but former majority leader Tom DeLay wanted Republican control of the U.S. House so he pushed through another reapportionment. The court’s rationale, partisan legerdemain so transparent that even a magician would be ashamed to use it, tore up the due process clause of the Constitution.
The reapportionment illegally reduced black and Latino voting strength. But no matter. Political appointees at the Justice Department overruled six lawyers and two analyists who called the plan invalid.
Another horrible decision decided by the Reactionary Five restricted free speech rights of 21 million public employees, declaring that the First Amendment does not protect them from complaints to their bosses about wrongdoing.
It was vicious slap at government whistle-blowers--truth-tellers--who expose corruption and fraud. Justice Souter, dissenting, said the “public interest in addressing wrongdoing and threats to health and safety” is paramount. And Justice Stevens noted in dissent the perversity of protecting whistle-blowers who go public while punishing in-house speech.
On wetlands, the fragmented court was unable to decide on the scope of the Clean Water Act. But Justice Stevens rightly pointed out that the retrograde bloc—Roberts, Scalia, Thomas and Alito—was “antagonistic to environmentalism” and “needlessly jeopardized the quality of our water.” Stevens also noted that the bloc was making law rather than interpreting it, a dig at conservatives who accuse liberal judges of judical activism.
All decisions, however, were not bad. The Supreme Court ruled that the Justice Department does not have the authority to block Oregon’s physician-assisted suicide and that federal narcotics law cannot stop a religious sect from importing a hallucinogenic tea central to its worship.
Roberts, in a unanimous opinion for the court, noted that for the past 35 years the government has permitted Native Americans to use peyote in religious rituals even though it is banned for general use.
Nevertheless, a look at Roberts’ first term reveals mostly dread news. He dissented in the death-with-dignity case. He dissented in the wetlands case, siding with developers. He voted with those who approved the money-is-speech decision. He voted with those who upheld shameful gerrymandering. He voted to deny whistle-blowing rights, declaring that he could find no First Amendment injury even when a whistle-blower was demoted for speaking out.
Reaction is firmly in the saddle. The great fear about future high court rulings: the liberating abortion decision of Roe v. Wade in 1973 will be overturned.