Right-Wing Judicial Activism Runs Amok

By Bill Scher, TomPaine.com. Posted June 26, 2007.

Way too many folks rolled over when John Roberts and Sam Alito were nominated for the Supreme Court. And now we're seeing the consequences.

In my recent book, I characterized the conservative judicial activist agenda as "elitist government, no longer representative of and responsive to the people, handcuffed from insisting upon responsible corporate behavior, but free to subject all Americans to one group's version of morality."

And today, we're seeing that vision in all its glory.

The conservative activists on the Supreme Court decreed in a series of 5-4 decisions:

* Individuals, who believe their tax dollars are being unconstitutionally misused by the White House to promote religious beliefs, aren't allowed to enter a courthouse to make their case.

* The Environmental Protection Agency can avoid its responsibilities under the Endangered Species Act, even though it's a law reflecting the public will as passed by the democratically-elected Congress.

* Corporations can once again use their checkbooks to flood the public airwaves with political ads during election season, again overruling Congress.

It's critical to recognize these decisions -- along with earlier decisions to end privacy between a woman and her doctor, and to make it harder to challenge pay discrimination -- are part of a pattern.

Because the battle for the Supreme Court is not over. As Justice Anthony Kennedy remains a swing vote, conservative activists do not have complete control. Yet.

Roberts and Alito were able to get on the Court because their dishonest PR operations went largely unchallenged. Roberts was christened "brilliant" and lauded as a lover of grammar. Alito was heralded as an "open-minded" judge who loves baseball and his mom.

All that was meaningless fluff intended to mask their conservative agenda.

We must remember how these nominees were misrepresented so they could get confirmed.

We must catalog the damage they did after being confirmed.

We must crystallize what the conservative activists are trying to achieve, and how it undermines what our founders wanted our judiciary to do.

If we do all that, the next time a conservative activist is being sold to the public, we can insist on proof that the nominee will uphold constitutional principles of representative government, not undermine those principles with elitist government.

And if we don't get any proof, we can reject that nominee on the merits -- that we cannot risk granting another lifetime appointment to someone who will not protect our constitution and our democracy.

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