Commentary

Published in the Mount Olive Chronicle.

The court and myth of the liberal justice

The Senate Judiciary Committee recently held hearings with respect to the nomination to the Supreme Court of John Roberts.

The concern articulated by the Democrats during the hearings is that this appointee of President Bush may in fact turn out to be as conservative as Justices (Antonin) Scalia and (Clarence) Thomas and that in turn would threaten the rights of the "little guy."

It is generally assumed that the most conservative members of the court are prone to side with big business and a government that oppresses the individual for the sake of political expediency or corporate profit. A review of certain Supreme Court decisions, however, tells a different story.

For example, the federal government has a law in effect that prohibits growing or prescribing marijuana for medical use - even if such use is deemed to be necessary by physicians for serious illnesses. In California, certain individuals who grew the substance for local medical use were found to be in violation of the federal law.

Suit was thus recently filed challenging this federal law on constitutional grounds, and the majority of the court ruled that the federal law was indeed valid. It was Justice Thomas in a dissent from the majority who appropriately identified the constitutional issue. The federal government, he reasoned, has no right to interfere with the California law in that the use involved - growing and prescribing marijuana - has nothing to do with commerce between the states. The U.S. Constitution protects the rights of the people from an overly intrusive federal government in mandating that only matters of interstate commerce be subject to federal law.

Here, the most liberal members of the court sided with the government against such medical use by those in need of the substance.

The Taking of Property

In Connecticut, a local municipality decided that it would be worthwhile to take the property of people who live in their homes - some from families who lived there for generations - and transfer it to commercial owners for development in order to bring in greater tax revenue.

This law was again challenged on constitutional grounds, specifically the "takings clause" of the constitution which provides that property can only be taken from an individual for just compensation and public use. Here the land was not being taken for public use, such as a highway or public hospital, but rather strictly as a means of generating greater tax revenue by taking the property from one private owner and giving it to another.

Again, the most liberal members of the court had no problem siding with the government against the individual, with the majority this year holding that such forcible taking of property was not in violation of the constitution. Justice Thomas wrote an impassioned dissent on behalf of the individual owners that "no compensation is possible for the subjective value of these lands to the individuals displaced, and the indignity inflicted by uprooting them from their homes."

Finally the much lauded McCain-Feingold bill was passed two years ago for the express interest of getting money and corruption out of politics by reforming the campaign finance system.

The law, among its many confusing provisions, prohibits a non-profit corporation or union in a television or radio ad for mentioning the name of a candidate within 60 days of a federal election.

In other words, publicly criticizing an incumbent could get you jail time.

The U.S. Constitution specifically provides that "Congress shall make no law abridging the freedom of speech" and this law was thus challenged on those grounds.

The most liberal members of the court again found the law to be acceptable, and not an assault on the fundamental right to freedom of speech.

Justice Thomas again was in the minority and joined in the dissent with Justice Scalia who wrote that "This is a sad day for the freedom of speech," in that the majority of members of the court "would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect, the right to criticize the government."

Where was the liberal majority in all of these cases?

On the side of big government and against the individual.

September 29, 2005