Activist Judges

by dday

Lost in the shuffle of the caterwauling about Sonia Sotomayor and the Ricci decision, aside from the fact that it reflects conservative judicial activism and the making of completely new law, is that it’s not even clear law. That must be what you get when you adjudicate by empathy toward white firefighters.

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.

But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.

“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”

The Court invented a new standard in applying these tests which will make it more difficult for anyone using such tests for promotions or to address workplace discrimination, from businesses to government employers. The talk the language of “strict originalism” and just being umpires calling balls and strikes, but in reality, they use the means at their disposal to make the decisions that fit a right-wing ideology. John Roberts, with help from Anthony Kennedy, has radically shifted the Court.

Chief Justice John G. Roberts Jr. emerged as a canny strategist at the Supreme Court this term, laying the groundwork for bold changes that could take the court to the right even as the recent elections moved the nation to the left.

The court took mainly incremental steps in major cases concerning voting rights, employment discrimination, criminal procedure and campaign finance. But the chief justice’s fingerprints were on all of them, and he left clues that the court is only one decision away from fundamental change in many areas of the law.

Whether he will succeed depends on Justice Anthony M. Kennedy, the court’s swing vote. And there is reason to think that the chief justice has found a reliable ally when it counts.

“In the important cases, Kennedy ends up on the right,” said Thomas C. Goldstein, a student of the court and the founder of Scotusblog, which has compiled comprehensive statistics on the current term. The two justices agreed 86 percent of the time.

If the Roberts gang has their way, by September of this year the Court will, in all likelihood, overturn a good bit of the McCain-Feingold campaign finance law, especially as it relates to corporate spending, opening up a loophole that could “allow unlimited spending from corporate treasuries for television advertisements and other communications to support or oppose candidates.” And Justice Sotomayor, replacing Souter, will have little impact on that.

George W. Bush’s legacy will live on for many, many years.

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