BARRON’S, September 21, 2015
Supreme Neglect of Liberty at the High Court
By James Bovard
Author James Bovard writes how America’s highest court has turned a blind eye to fundamental rights.
In its recent landmark decision on gay marriage, five Supreme Court justices proclaimed that “the Constitution promises liberty to all within its reach…to define and express their identity.”
While the court proudly created a new freedom, it continues to fail to safeguard freedoms that generations of Americans once enjoyed. Instead, the court perennially turns a blind eye to government agencies that cut vast swaths through the Bill of Rights.
As the court showed in numerous rulings this past term, the primary purpose of “law” nowadays is to provide an opening for presidents to do as they please. In a June decision, six justices saved Obamacare for a second time by effectively ruling that a federally run insurance exchange is close enough for government work to “an exchange established by the State.”
The court’s contortions were even greater in a fair-housing decision handed down the same day. The court sanctified the use of disparate-impact analysis for housing discrimination, thereby creating vast liability for local governments, insurers, and other businesses due to unintentional statistical discrepancies. Five justices sided with the Obama administration, ignoring the actual words of the 1968 Fair Housing Act and instead invoking the logic of previous court rulings on other subjects. As a result, any locality with a lower percentage of minorities than the national average could find itself a target of federal housing enforcers.
Unfortunately, the court has long relied on verbal contortions to sanctify political power grabs. In 2005, in the Kelo v. City of New London decision, the Supreme Court declared that the “public use” requirement in the Takings clause of the Fifth Amendment really meant “public purpose.” Even cases in which the government seizes one person’s land to directly give it to another private citizen can meet this standard, according to the court—since anything that helps politicians presumably serves a public purpose.
It isn’t just landowners whom the court has put at the mercy of officialdom. In a series of rulings beginning in the 1990s, the court green-lighted a vast expansion of confiscation, even without criminal conviction, based on contorted ancient precedents. For instance, the court invoked an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. ships to uphold the confiscation of an automobile jointly owned by a husband and wife, after the husband was caught with a hooker on the front seat. Hundreds of thousands of citizens have seen their cash, cars, or other property commandeered merely because a government agent suggested that it might have been linked to some illicit use.
The Fourth Amendment to the Bill of Rights says it protects Americans against unreasonable, warrantless searches and seizures of their property and papers. But the Supreme Court has swallowed one dubious pretext after another to sanctify government intrusions. It has continually defined privacy down, until government searches are almost never considered “unreasonable.”
Two years ago, the court rejected a challenge to the National Security Agency’s warrantless wiretaps because the plaintiffs couldn’t prove they had been spied on. (Ten years ago, the NSA was condemned in a Barron’s editorial, “Unwarranted Executive Power,” Dec. 26, 2005.) The court effectively ruled that, as long as NSA spying is kept secret, no likely victim could challenge it in court.
The National Security Agency’s victory was short-lived; a few months later, Edward Snowden’s leaks showed how it had become a giant vacuum cleaner that illicitly seized tens of millions of Americans’ e-mail and phone records and other personal data.
The court has turned a blind eye to most of the civil-liberties abuses that have occurred since 9/11. Millions of Americans have been outraged by the intrusions and arrogance of the Transportation Security Administration, but the court has refused to accept any case challenging the TSA’s compulsion of travelers to submit to its “whole-body scanners,” which take explicit photos that are so revealing that they disclose whether a male has been circumcised. The court has also done nothing to curb the Obama administration’s vendetta against journalists and whistle-blowers whose revelations embarrass federal policy makers. The court’s acquiescence makes it far easier for agencies to cover up outrageous conduct.
One case the court got right in June also illustrates the high cost of awaiting judicial deliverance. In 1949, the Agriculture Department set up a Raisin Administrative Committee, which, invoking the Agriculture Marketing Agreement Act of 1937, claimed the right to confiscate up to 47% of raisin farmer’s harvests to drive up raisin prices.
When the Supreme Court first heard this case in 2013, Justice Elena Kagan groused that the 1937 statute could be “the world’s most outdated law.” Two years later, the court finally ruled that confiscating farmers’ crops without compensation violated the Fifth Amendment. The Obama administration had defended raisin confiscations with the bizarre claim that the Takings clause of the Constitution protects only land, not other forms of property.
Dozens of farmers have filed challenges to the confiscations of crops of many kinds by Agriculture Department-empowered committees over the past half-century. While generations of farmers were plundered, the Supreme Court either never heard their cases or failed to clearly rebuff this classic example of bureaucratic tyranny. So the raisin case was a giant—though rare—step in the right direction.
The Founding Fathers never expected the Supreme Court to become a rubber stamp for Leviathan. But counting on the Supreme Court to defend your freedom is like trusting a politician to keep his campaign promises. Many recent court decisions should teach Americans that the court’s nine political appointees will rarely ride to the rescue of their constitutional rights.
JAMES BOVARD is the author of Attention Deficit Democracy, Lost Rights, and eight other books.