Justice on the rocks: The demise of the people’s court

Published on Intrepid Report, by John W. Whitehead, June 14, 2012.

The (US) Warren Court handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination. Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools and no civil rights protections for indigents. Yet more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court should always be—an institution established to intervene and protect the people against the government and its agents when they overstep their bounds.  

That is no longer the case. In recent years, especially under the leadership of Chief Justice John Roberts, sound judgment and justice have largely taken a back seat to legalism, statism and elitism, while preserving the rights of the people has been deprioritized and made to play second fiddle to both governmental and corporate interests—a trend that has not gone unnoticed by the American people. In fact, a recent New York Times/CBS News poll found that just 44 percent of Americans approve of the job the Supreme Court is doing, while 75 percent say the justices’ decisions are sometimes influenced by their personal or political views.

The Supreme Court’s decisions in recent years, characterized most often by its abject deference to government authority, military and corporate interests, have run the gamut from suppressing free speech activities and justifying suspicionless strip searches and warrantless home invasions to conferring constitutional rights on corporations, while denying them to citizens. This outright regard for government authority at the expense of individual freedoms is most apparent in the Supreme Court’s most recent 8–0 ruling in Reichle v. Howards. In their unanimous decision, the Court actually held that immunity protections for law enforcement officials, specifically Secret Service agents, trump the free speech rights of Americans … //

… In the end, the law means nothing if it isn’t applied to human beings compassionately. The reason judges sit on courts is to do justice. Yet the members of the Supreme Court are part of a ruling aristocracy composed of men and women who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo.

Unless you’ve experienced life outside the rarefied, elitist circles in which most of our judiciary operate, it is difficult to see the humanity behind the facts of a case, let alone identify with the terror and uncertainty that most people feel when heavily armed government agents invade their homes, or subject them to a debasing strip search, or Taser them into submission. Likewise, if you’re not able to understand what it’s like to be one of the “little guys,” afraid to lose your home because some local government wants to commandeer it and sell it to a larger developer for profit, it would be relatively easy to rule, as the Supreme Court did in Kelo v. New London (2005), that the government is within its right to do so.

It also doesn’t help matters that Supreme Court justices are appointed for life. Thomas Jefferson came to understand the dangers posed to freedom by lifetime appointments to the Supreme Court. In a letter to Monsieur A. Coray, Oct 31, 1823, Jefferson confided his worry that the court would end up doing more harm than good:

At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.

Less than 200 years later, Justice John Paul Stevens issued his own warning that the Supreme Court had taken a turn for the worse. Dissenting from the court’s ruling in Bush v. Gore in which the court effectively decided the 2000 presidential election in favor of George W. Bush, Stevens declared:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to the confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
(full text).

(About John W. Whitehead: Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at amazon. Whitehead can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at The Rutherford Institute).


The (US) Warren Court: … refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents. The Warren Court expanded civil rights, civil liberties, judicial power, and the federal power in dramatic ways …

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