A BUZZFLASH INTERVIEW
Words like judicial activism and judicial restraint have absolutely no meaning. If I have a liberal court, I want to see judicial activism. I want to see them go out and do things. If there’s a conservative court, I want to see judicial restraint, so they can’t do too much damage. The language that the Rehnquist Court and the conservatives have used over the last decades accusing the Warren Court of being too judicially active, and that they’re restrainers, is nonsense. The Rehnquist Court struck down more federal legislation than any other Court before it.
-- Martin Garbus, trial lawyer and author of The Next 25 Years.
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Remember Bill Frist's "nuclear option," the one that threatened to do away with the Senate filibuster if the minority Democrats wouldn't play ball on judicial confirmations ("an up and down vote")? Remember the subsequent rubber-stamping of Bush's right-wing appointments to the Supreme Court, John Roberts and Samuel Alito? Martin Garbus is one of the country's leading Constitutional lawyers, and in his latest book he takes a steely look at where we're headed now that the Supreme Court has left behind its long history of a balanced, 4/5 pattern of voting. Garbus argues that the coming bench may imperil our way of life and endanger the liberties we have always viewed as our inalienable rights. He talked with BuzzFlash recently about this ticking time bomb.
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BuzzFlash: What does the right-wing shift in the Supreme Court portend for Americans?
Martin Garbus: I think it means an end to integrated education. It also means an extraordinary amount of money going into the churches via the federal government. It means no environmental protection. It means the expansion of the rights of the states against the federal government, which means the diminution of any programs that the federal government passes, such as the Disability Act, the Aged Act, or the Violence Against Women Act. It also means serious inroads into other decisions of the Warren Court and the Roosevelt Court. It also means an extraordinary limitation on the one-man, one-vote principle, which was articulated by the Supreme Court back in 1962.
In these cases the Court is not necessarily going to reverse the landmark decisions -- Brown against Board of Education, or Baker against Carr. The Court will either not take the cases or sidestep them. Baker against Carr deals with gerrymandering -- with stopping political people from hacking up districts so that certain groups are disproportionately edged out of representation either in the federal legislature or in state legislatures. In those cases, the Court can just say we shouldn’t be taking those cases, gerrymandering cases are political, we’re not going to deal with it.
Brown against Board of Education deserves a separate discussion. It’s a landmark case of the Warren Court which says that if a state maintains segregation, the court can order integration. The court can integrate those schools by sending blacks to white schools, whites to black schools, through busing, through a variety of programs -- and that’s been the law since 1954. The legacy of that case is one of integration. Now some new cases from Seattle and Louisville have been sent up before the United States Supreme Court. In each of those cases, school boards and parents themselves want to have their schools integrated. Because of housing patterns or job patterns, the schools are racially segregated.
The Supreme Court is going to decide this year that parents cannot make that decision to have their schools voluntarily integrated. They’re going to say that when parents make decisions based on race, that’s racial classification. That concept was accepted in Brown against Board of Education. Here, it’s totally being rejected. After Brown against Board of Education, after the Democratic Warren Court kind of wound down, the Court decided to pull out of the school integration business. From 400 court orders in the country, you went down to one or two by the time Rehnquist died. It’s the conservative attempt to get out of the integration business. I think it’s extraordinarily tragic that this case is going to be fundamentally reversed. They won’t say we’re reversing Brown against Board of Ed, but they’ll say we’ll step aside from it.
One of the things people have to understand is this whole question of precedent. There's one thing Robert Bork and I agree on -- that the value of precedent is overstated. In a nomination process, when the Supreme Court judges, or perpetual justices, are asked whether they’re going to stick to precedents or not stick to precedents, people feel more comfortable when the judges say they’re going to stick to precedent. But you can avoid precedent in dozens and dozens of ways. For example, no judge would ever say I’m going to void Brown against Board of Education. He’d get shot down in a minute by everybody. But here’s a case where they are going to void Brown against Board of Education in effect. They may pay homage to precedent, but then they’ll make a distinction between the two cases. Asserting Brown, they’ll nevertheless segregate education. They'll draw a distinction and talk about education being segregated because of job patterns and housing patterns.
Another example is that, in the last four years, more money has gone from the federal government to churches than over the rest of American history due to Bush's faith-based initiative. One way to challenge Bush’s faith-based initiative is for a taxpayer to walk into court say my money should not be used for a parochial school or some other faith-based initiative. The Court just heard argument recently on whether that taxpayer has the right to challenge what the government does with funds. The law had been, since the mid-sixties, that when it came to funneling money from the federal government into religious organizations, a taxpayer could litigate the constitutionality of that.
The idea of the faith-based initiative is that a religious organization agrees to do something that federal or state organizations generally do, like taking care of the homeless, or taking care of children. The law had always been that religious organizations getting federal or state monies could not use the funds to proselytize their religion. If they were giving the same services as the federal or state government, the church or the synagogue or the mosque could get those monies. They were doing a state service.
But the faith-based initiative now permits the churches to take the money and then proselytize. If the Salvation Army has a program for the homeless, they can make as a condition of the person getting a home that they be exposed to X number of hours of prayer meetings. It permits the Salvation Army or any other faith the right to, let’s say, put up crosses or Stars of David throughout their building. Buildings, which have been secular, or non-denominational, now become church organizations. The amount of money that is going into these organizations is absolutely extraordinary.
I have a case where we can challenge, I hope, some of the faith-based initiatives. In this case some Salvation Army people were fired from their jobs because they refused to sign a document which said, “I believe in the creed of the Salvation Army. I will teach each person who comes into the Salvation Army that particular creed.” These were a variety of people -- Jewish, Catholic, Protestant. They said that they had been in the Salvation Army for 23 years, and they refused to make it a condition of their job that they do this kind of teaching. So I think that the changes are going to be absolutely enormous and extraordinary.
BuzzFlash: The issue of military authority came up in the confirmation hearings of Samuel Alito and Chief Justice Roberts. Alito and Roberts both appear to endorse the concept that executive authority in the Presidency has very few limitations. What do you think is going to happen over the next quarter century with the concept of the unitary executive, in terms of the balance of powers between the three branches of government?
Martin Garbus: Well, first of all, let me explain why I use the timeframe of 25 years. The three youngest judges, Thomas, Roberts, and Alito, are all conservatives. The two judges most likely to step down are Stevens, who’s 86, and Ginsberg, who’s been sick. Then you have the middle batch of judges who are 69 and 70 -- that’s Kennedy, Souter, Breyer, and Scalia. The probabilities are that Bush will have one more appointee. He’s clearly going to be able to get somebody like Roberts through. Roberts, with his Boy Scout demeanor, misled people into thinking that he was less conservative than Alito, which is not true. If you look at his voting record, if you look at his past history, you see that’s not true.
Regarding the unitary president, what the Supreme Court has been saying consistently for the last five years is that we’re not going to give the president a blank check. After they say that, they do give him a 90% blank check. For example, they said the President can’t incarcerate people forever at Guantanamo under the title of "enemy combatants" without a due process trial. -- but they also said, if Congress wants to do it, then Congress could do it.
So Congress does it. The President signs it, and the Court is basically going to approve that a year or two from now. I think you’re going to see an enormous expansion of federal powers, of executive power. The combination of having the war on terror, along with having people who want an expansion of powers -- that’s Kennedy, Roberts, Thomas, Alito, Scalia -- those five who want an expansion of powers -- I think, is going to allow some kinds of things that have never before been seen in the United States.
In Britain, for example, they asked for a sixty-day detention without a trial. Tony Blair argued that you have to have such a detention period because you need time to determine whether or not the suspect is guilty. The British government refused to give it to them. They have 22 days. In Canada, they recently held that a 72-hour detention period was unconstitutional. In Guantanamo, you have people jailed now for four or five years. Not one person out of all the terrible, terrible people who live in Guantanamo, has been tried. And clearly, not one person has been found guilty. So the whole idea of holding people forever, away from court review, is going to continue.
The Court will probably uphold a piece of legislation that Congress passed which says that habeas corpus could be withheld from the people in Guantanamo, or foreigners, wherever they’re detained. The Court is also going to allow the very, very loose definition of torture that’s in the recent legislation. In other words, they say torture should not be unreasonable. Who decides what’s unreasonable? The answer under the law is that the security officer is the person who’s doing it. It’s not clear that the judgment about what’s reasonable or unreasonable ever gets into a courtroom.
BuzzFlash: It’s kind of a mantra of the Federalist Society, to which many of these conservative, right-wing judges belong, that they oppose judicial activism. But in essence, isn’t Justice Scalia really a right-wing judicial activist?
Martin Garbus: Absolutely. Words like judicial activism and judicial restraint have absolutely no meaning. If I have a liberal court, I want to see judicial activism. I want to see them go out and do things. If there’s a conservative court, I want to see judicial restraint, so they can’t do too much damage. The language that the Rehnquist Court and the conservatives have used over the last decades accusing the Warren Court of being too judicially active, and that they’re restrainers, is nonsense.
The Rehnquist Court struck down more federal legislation than any other Court before it. The refusal of the Rehnquist Court to accept determinations made by Congress about what kinds of laws are needed is remarkable.
Congress passed a law which said it’s a crime to bring a gun within 1,000 feet of a school. This came after Columbine. People came to the Congress and said a gun can be sold in California and then wind up in New York, so we need the help of the federal government. So the federal government passes a law which says you can’t have a gun within a thousand feet of a school. The United States Supreme Court then strikes that down and rules that Congress has no right to legislate in that area. It says guns are purely a local question. The Supreme Court has done that in many, many cases, affecting women’s rights, the rights of the disabled and of the aged.
BuzzFlash: These are examples of conservative judicial activism.
Martin Garbus: Yes.
BuzzFlash: The Supreme Court is at the top of a pyramid of a whole system of federal courts. Recently the Washington, D.C. federal appellate court upheld the denial of habeas corpus at Guantanamo by a two-to-one decision. The court was led by the zealot of right-wing judges below the Supreme Court, David Sentelle, who was one of the judges voting to overturn the convictions of Oliver North and John Poindexter. He also replaced the special counsel looking into the Clinton Whitewater allegations. Mr. Fisk was about to close up shop, and Sentelle replaced him with Ken Starr after meeting with Jessie Helms, who was a senator at the time. Sentelle seems to be lurking in the background of many of these major decisions. So there’s a whole infrastructure of right-wing activist judges.
Martin Garbus: You’ve put your finger on something extraordinarily important. Most of the twelve circuit courts are solidly in the hands of the conservatives. The only two circuit courts that are not yet solidly conservative are the federal court in Manhattan -- the 2nd Circuit Court of Appeals -- and the 9th Circuit Court of Appeals, in California. The Bush Congress had threatened to break up the 9th Circuit, thus isolating liberal judges and making them less meaningful.
The other thing is that the Supreme Court is taking fewer and fewer cases. They’ve already dropped to about 130 a year, and this year they’ll probably take only sixty. That means the basic laws of the land will be in large part interpreted by the circuit court judges. The conservative judges in the South and the West have basically made abortion impossible for a large number of people. In five Southern states, no abortion clinics get any federal or state funds.
The way they do this is the state passes a law that says if you want to have an abortion clinic, then you have to have a certain kind of help. The doctor has to have such-and-such degrees. The nurse has to have such-and-such competence. You have to have such-and-such machines. The building has to be so-many and so-many feet, and the paperwork has to be X. The result is that it makes it far too expensive to have an abortion clinic. Now in the Western states, 34% of women live more than 500 miles from any federal or state abortion clinic. So without reversing Roe against Wade, they have seriously and dramatically cut down on the number of abortions in the United States.
BuzzFlash: You’re a nationally renowned attorney with extensive legal knowledge. You’ve argued cases at the Supreme Court, and you’re a very high-profile litigator But it seems to us that Americans who are not attorneys, and who are not very attuned to politics, don’t really follow what goes on in the federal court system. The Supreme Court seems very remote, kind of like global warming. You might hear about it, but you don’t really personally experience it. My point is that it’s always hard to get the attention of the public when the President of the United States makes a federal court nomination, including the Supreme Court. They just see the Supreme Court as something that isn’t really going to affect me.
Martin Garbus: I agree with you completely, and there are many reasons for that. Justice Breyer says that the Supreme Court is totally transparent. It’s not true. You don’t have cameras in the courtroom. You have no idea what goes on in the conference room where they have their discussions.
Also, lawyer-ese makes it impossible to read. Decisions may be 120, 130 pages long, with six or seven opinions written by different judges. It just becomes impossible for people to understand. There has to be some kind of way of educating the public as to what the most important issues are. The most recognizable justice in the United States over the last fifty years has been Justice O’Connor, because of her unique position as the first woman on the Supreme Court. Eleven percent of the American public can recognize her. Less than 3% of Americans can tell you the names of more than three judges on the Supreme Court. What I just told you about the integration case, and about the religion case, were basically not on the public radar. And those are extraordinary decisions.
BuzzFlash: One thing that fascinates us personally is this reverence for Antonin Scalia as an intellect, which he sort of cultivates. Indeed, he may be a brilliant person and a brilliant attorney. But that is used in a way to make it seem like he’s not partisan, even though he makes extremely partisan statements. He is the one who took the first shot, in essence putting George W. Bush in office, when he issued that very contorted reason for putting a stay on the Florida Supreme Court order to recount the votes in Florida. He said that if it went ahead, it might tarnish the reputation of the presumed President, George W. Bush. In essence, if the vote went ahead and Bush didn’t win, that would tarnish his reputation. And we’re going to make sure he wins anyway. That’s the way we read that very bizarre statement.
But in many ways, Scalia is the most partisan of judges. He sometimes makes outrageous statements. He spoke at a synagogue in Alabama and said that Jews have nothing to fear from a Christian nation, which seems to forget completely that Nazi Germany was a Christian nation. He seems to make dumb statements which are born clearly of a partisan perspective. So what does it mean to be a brilliant lawyer, but to be so outrageously partisan?
Martin Garbus: I don’t think that brilliance counts as much as people seem to think. Justice Holmes said that when a judge makes a decision, 80% of it is based on his own personality, his own bias, and where he wants to go, 10% of it is based on the law, and the other 10% he can’t figure out. The thing that drives judges is not so much the interpretation of the law, but rather who they are. And it’s not surprising that someone like Thurgood Marshall, who comes out of the civil rights movement, has approached cases totally differently than Alito or Kennedy or Thomas, for a variety of reasons. Or someone like Black, who was a practicing lawyer, is never going to make decisions like Roberts.
The first thing to acknowledge is that there is not some immutable law that people can pull out. In the abortion area you have twelve circuit courts. You probably have 300 decisions by the various circuit courts on various aspects of abortion. Of the 300 decisions, 150 will go one way, 150 will go the other way. Then it goes up to the United States Supreme Court, and by and large, you have 5-4, 5-4, 5-4. One really can’t believe that when you have, let’s say, 299 to 298, that those 298 judges are wrong on the law, or that they’re right on the law. The law is fundamentally, in my belief, 100% subjective, and is applied 100% politically, depending how you define political. The fact that five of the nine Supreme Court judges are Catholic has significance. But people bring who they are to the Court.
BuzzFlash: Bush may get one more right-wing, conservative judge. Then he has a firm 5 to 4 -- and with Kennedy, even a 6 to 3. Let’s just make a hypothetical here, without indicating any support for any Democratic candidate, but supposing Barack Obama became the Democratic candidate and then the President. You’ve got a right-wing Court there. Is their opinion on unitary authority going to change because there’s a Democratic president now?
Martin Garbus: I don’t think so, but no one can say. What this Supreme Court has said thus far or seems to imply is that the President has full control of foreign affairs. They’re saying also that he has extraordinary power with respect to domestic affairs. I don’t think that will change. If there’s a Democrat in office, the Court will do exactly what they did with Brown against Board of Education. They will just find the case different. As a result of the difference, they’ll deny the Democratic president the same rights that they would give to a Republican president. That’s why a more subtle understanding of precedent is necessary to really understand how the Court operates.
BuzzFlash: In closing, you’re trying to educate people to the fact that the Supreme Court justices don’t always show their cards frontally. The Court may act in an oblique way They can avoid accusations of hypocrisy because they won’t actually rule on it. They simply let a lower court ruling stand. But that, in itself, is a statement.
Martin Garbus: Yes, that is exactly right.
BuzzFlash: Thank you very much for the wonderful book. Continue to inform us and provide insights into what faces us from the conservative courts.
Martin Garbus: Thank you very much.
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BuzzFlash Interview conducted by Mark Karlin.
The Next 25 Years: The New Supreme Court and What It Means for Americans (Hardcover), by Martin Garbus, a BuzzFlash Premium.
Supreme Court Decisions (Findlaw)
A BUZZFLASH INTERVIEW