Supreme Court Justices John Roberts, Clarence Thomas, Stephen Breyer, and Samuel Alito attend the State of the Union address in 2006. (AP Photo/Evan Vucci)
On March 17, President Barack Obama announced his first judicial nominee: David Hamilton, a 15-year veteran Indiana federal trial judge with the declared support of both Indiana senators, Republican Richard Lugar and Democrat Evan Bayh. With his selection of Hamilton for the 7th Circuit Court of Appeals, Obama fulfilled a promise he reportedly made to Republicans. The previous month, ranking Judiciary Committee Republican Arlen Specter told Roll Call that the president had assured him that he would send up nominees "who can get Republican support" and "be acceptable to all sides."
The Court's campaign against individual court enforcement of consumer, employee, retiree, and other statutory protections has been a secret hiding in plain sight for the last four decades. Congress is finally taking notice.
The fractious finish of the Supreme Court's 2007-2008 term, coupled with new rumblings on Capitol Hill and the prospect of expanded Democratic gains in November, suggest that we could be at the brink of an epochal clash between the Court and the elective branches of government.
Modern American conservatives are widely perceived as reflexively pro-states' rights. But as long ago as 1982, movement icon Antonin Scalia, then a University of Chicago law professor, warned members of the fledgling Federalist Society to shed such myopic nostalgia. Conservatives' underlying goal, he said, is "market freedom." While that goal surely justifies opposition to federal economic intervention, he observed, it should also entail actively exploiting federal authority to stop objectionable meddling by state governments. He counseled conservatives to "fight a two-front war" against overzealous regulation at the state no less than the federal levels: "[W]ith all these targets out there," he noted, there must be "at least a few targets to be shot at."
When most Americans think about the Supreme Court's effect on the life of their nation, they think about such cultural hot-buttons as abortion, or due process for terrorists, or free speech and pornography. They don't think about the Court's effect on the issues that most directly affect the majority of them on a daily basis -- health and retirement security, workplace fairness and equal opportunity, consumer protection and product safety.
Two citizens hold signs during a news conference in Louisville, KY, following the decision yesterday. (Photo by the Associated Press.)
Digging out from an unprecedented avalanche of 5-4 end-of-term Supreme Court decisions overruling its own precedents, federal statutes, state laws, and local ordinances, many Americans have now caught sight of a specter once imagined only by a tiny cadre of legal cognoscenti: A Supreme Court bound and determined to reprise the Court's reactionary role from a century ago, out to squelch progressive policies whatever their source.