By Bill Blum
Whither the Supreme Court?
As the country waits in fear and loathing for the high tribunal to drop the dime on Obamacare and give its blessings to Arizona’s “papers please” immigration law, court watchers might do well to parse the damage Chief Justice John Roberts and his colleagues have already done this term to our collective rights and liberties.
With more than 70 cases on its total docket and more than a dozen still undecided, including the health care and Arizona blockbusters, it’s difficult to single out the opinions issued to date that best illustrate the court’s hard turn to the right. But here are three that should make any short list:
Florence v. Board of Chosen Freeholders, County of Burlington
In March 2005, Albert Florence, a 34-year-old African-American car dealership executive, was riding in the passenger seat of his SUV. His pregnant wife was at the wheel and the couple’s three children were nestled in the back when a New Jersey state trooper pulled the vehicle over for speeding. The trooper ran a routine records check on a statewide computer database, which disclosed that Florence had an outstanding arrest warrant for nonpayment of a fine stemming from his arrest seven years earlier after he had fled the scene of a traffic stop.
Although the fine in fact had been fully paid, Florence was taken into custody. Over the next week, he was housed in two county detention centers and was subjected in each to full-body strip-searches during which he was made to stand naked, squat, cough, spread his butt cheeks and move his genitals. “It was humiliating,” Florence later told The New York Times. “It made me feel less than a man. It made me feel not better than an animal.”
After he was discharged and the outstanding warrant was dismissed, Florence filed a civil rights suit in federal District Court against his jailers, alleging violations under the Fourth and 14th amendments of his right to be free from unlawful searches and seizures. He won a summary judgment, but the ruling was later reversed by the 3rd U.S. Circuit Court of Appeals, and the case was subsequently accepted for review by the Supreme Court.
In a bitterly partisan 5-4 decision issued in April, written by Justice Anthony Kennedy, the court sided with the 3rd Circuit and New Jersey county officials. Furthering a disturbing trend of deferring to local authorities, the court held that penal officers may strip-search anyone before admittance to general jail populations even if the charged offense is minor and even if there is no reason to suspect the arrestee is carrying contraband or a weapon.
Although routine strip-searches unsupported by reasonable suspicion are prohibited by 10 states and conflict with policies in place at federal facilities, Kennedy invoked the specter of Oklahoma City bomber Timothy McVeigh, writing that even “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” Justice Stephen Breyer, writing for the court’s dissenting four Democratic appointees, condemned Florence’s experience as “an affront to human dignity.”
Blueford v. Arkansas
Alex Blueford may be no angel, but neither is he guilty of capital murder, at least according to the Arkansas jury that voted to acquit him of that charge.
In 2007, Blueford’s live-in girlfriend left him and another housemate in charge of her 20-month-old son. About an hour after the girlfriend departed, the housemate called emergency services to report that the child had been injured and was having trouble breathing. He died two days later in a hospital.
At Blueford’s 2009 trial, the state argued that the accused intentionally killed the boy in a rage-driven shaken-baby episode. Blueford countered that he inadvertently flinched and knocked his ward to the floor as the child climbed over his shoulder with a lit cigarette taken from an ashtray.
The state’s case against Blueford was based in large part on the testimony of the local medical examiner who autopsied the child and testified that his head injuries were inconsistent with an accidental tumble. The examiner was not board certified in anatomical pathology and had failed the certification exam five times.
After hearing all the evidence, Blueford’s jury reported to the trial judge that it had reached unanimous not-guilty verdicts on both murder theories, but had deadlocked on the issue of manslaughter. A half hour of additional deliberations proved fruitless, and the judge declared a mistrial—without recording formal verdicts on the murder charges.
When the state attempted to retry Blueford on capital murder, he objected and appealed—all the way to the Supreme Court. In a 6-3 opinion authored by Roberts in late May, and inexplicably joined by Breyer, the court rejected Blueford’s claim that the double jeopardy clause of the Fifth Amendment precluded a second murder prosecution in light of the jury’s announced findings. “The foreperson’s report [that the jury had reached not-guilty murder verdicts] was not a final resolution of anything,” Roberts declared, reasoning without any factual basis that the jury could have changed its mind about the murder theories during the additional deliberations.
In dissent, Justice Sonia Sotomayor, in a now-familiar refrain, chided the majority for departing from the court’s prior precedents on double jeopardy, elevating form over substance and giving the state a “proverbial second bite of the apple.”
Blueford is scheduled to be re-arraigned on all charges later this month in Arkansas.
Perry v. Perez
If the Supreme Court handed Arkansas a second bite in Blueford, it gave Gov. Rick Perry and his Texas Republican cronies the entire apple in this set of three companion voting rights cases handed down in January.
When the 2010 census revealed that the population of Texas had grown by 4.2 million, the state Legislature was required to redraw congressional districts to comply with the one-person, one-vote standards of the Voting Rights Act of 1965. But instead of redrawing the electoral map to reflect a decades-long upsurge in the state’s Latino population, the GOP-controlled Legislature crafted a plan that undercut the political clout of both Hispanic and black communities. The redistricting was so imbalanced that even before the Voting Rights Act review process was completed, civil rights groups persuaded a three-judge federal panel in San Antonio to scuttle the Republican remap and craft a more evenhanded plan of their own.
Perry and the state Legislature took umbrage and the Roberts court came to the rescue. In a unanimous unsigned “per curiam” opinion released in January, the court ruled that the three-judge panel had exceeded its authority and had failed to show proper deference to the Legislature’s policy judgments on where to place new voting districts and reposition existing ones.
Whether the court’s four Democrat-appointed justices joined the decision out of genuine conviction or because of an adherence to notions of judicial restraint that their conservative brethren have long since abandoned, the ruling likely will result in new district boundaries favoring Republicans in the November elections.
As scary as these three decisions are, they’re merely a warm-up for the main act to come later this month when the court hands down its Arizona and Obamacare opinions. If the court, as many predict, strikes down the Affordable Care Act and upholds the Arizona immigration law, it will confirm that a profound alteration of the nation’s legal architecture is under way, aimed at rewriting constitutional principles at the expense of working people, minorities and the poor.
Even if President Obama is re-elected—and with the retirement of Justice Ruth Bader Ginsburg anticipated in the near future, keeping him in the White House has taken on added urgency—the court’s Republican-appointed majority will endure. The 2012-13 docket already includes a constitutional challenge to affirmative action. A ruling on same-sex marriage and a re-examination of the Citizens United decision as it applies to state elections could also be in the offing. At least one thing can be said of the court’s Republican appointees: They’re neither slow to act nor shy about the reach of their intentions.