Daily Beast/Newsweek Hits Conservatives on Supreme Court as 'Radical,' Suggests They're Racist, Misogynistic

Driven close to a hydrophobic frenzy fearing that the Supreme Court will soon strike down ObamaCare as a transgression of the Constitution's limits on federal power, Newsweek's Michael Tomasky took to his keyboard to vent his spleen, all but denouncing the conservatives on the Supreme Court as "radical" racists and misogynists backed by shadowy right-wing money men.

Tomasky's piece is laughably predictable in its foaming-at-the-mouth rhetoric -- Scalia, he tells us, belongs on a "marginal rubber-chicken circuit" rather than "on the highest court in the land imposing his 16th-century will on the rest of us" --  but it's also built upon some distortions of what the Roberts Court has actually done in some "hot-button" 5-4 cases.

"I looked at eight representative and major Roberts Court decisions in hot-button issue areas," Tomasky noted, starting with two that dealt with "race":

Parents v. Seattle & Meredith v. Jefferson, which began as two cases and were eventually combined into one, also known as the Seattle/Louisville desegregation case. The Court ruled that local school districts basically couldn’t do anything to ensure racial diversity in their schools.

That's excellent liberal spin, meant to suggest a moral blindness to institutionalized racism by a conservative Roberts Court, but as former NewsBuster Jason Aslinger has explained, the mainstream media were wrong to see the rulings as a blow against school integration. From his July 3, 2007 post (emphases mine):

In the wake of last week’s Supreme Court decision regarding racial integration in public schools, the media have gone out of their way to obscure the facts for the purpose of advancing its familiar political agenda, not to mention skipped over giving readers a glimpse of the concurring opinions of Justices Thomas and Kennedy, both of which shed light on the case's significance to the average American.

In a prior NewsBusters post, I called out MSNBC's Keith Olbermann for his false and race-baiting claim that the Supreme Court had “overturned” the landmark decision of Brown v. Board of Education. The subsequent commentary by the media has at least been more clever, but no less false. Undoubtedly, the press and “expert commentators” have calculated that the general public would not check their factual (and political) conclusions by reading the Court’s 185-page opinion. Without knowing the specific facts, the media distortions can not be fully appreciated. Below we'll take a look at the facts of the case as well as the reasoning from the justices, reasoning that all too often is glossed over if not outright ignored in the media.

The case in question was a consolidation of two challenges to the racial integration plans for the public school districts in Louisville, Ky., and Seattle, Wa. These school districts had integration plans which relied mostly upon race-neutral criteria, but in the case of “resolving ties,” the school district would assign a small number of students based solely upon their race.

In the Louisville example, kindergarten student Joshua McDonald was assigned to a public school ten miles from his home. His mother applied to have Joshua transferred to a school one mile from his home. Since Joshua was not a black student, and his enrollment at his desired school would disrupt the school district’s pre-determined goal for racial integration, the school district denied Joshua enrollment.

In its decision, a four-justice plurality (Alito, Roberts, Scalia and Thomas) found that Joshua McDonald had been denied equal access to the school of his choice solely on the basis of race. Ironically, the Louisville school district employed racial discrimination for the purpose of advancing racial integration.

The four-justice plurality found that even if the “ends justified the means,” racial classifications of any kind were unacceptable, unconstitutional, and therefore illegal. Justice Kennedy, concurred in the ultimate judgment, but found that certain “race-conscious” policies were acceptable as long as they didn’t arbitrarily treat individual students differently from others based upon race.

Justice Thomas also wrote a separate concurrence in which he made a point that has been ignored entirely by the mainstream media. Justice Thomas remarked that Brown v. Board of Education was about the desegregation of public schools, while the current cases were about racial imbalances, which by their nature are fluid.

Another ruling with which Tomasky took umbrage was:

Ledbetter v. Goodyear, which made it harder for (female) employees to sue employers on equal-pay grounds.

Again, nice spin, but the court simply held that Ledbetter could not file a lawsuit as her filed claim was well past the relevant statute's deadline for doing so. If Ledbetter was a Larry instead of a Lilly, it would have come down the same way.

Indeed, if Tomasky's gripe with the court is judicial activism, he should applaud the ruling in Ledbetter, which strictly applied the law on the books and hewed close to established precedent. From Justice Alito's majority opinion (emphasis mine)

We are not in a position to evaluate Ledbetter's policy arguments, and it is not our prerogative to change the way in which Title VII balances the interests of aggrieved employees against the interest in encouraging the "prompt processing of all charges of employment discrimination," Mohasco, 447 U.S., at 825, 100 S.Ct. 2486, and the interest in repose.

Ledbetter's policy arguments for giving special treatment to pay claims find no support in the statute and are inconsistent with our precedents. We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented to the EEOC within the period prescribed by statute.

Spurred by the Court's decision, Congress subsequently amended the law to address the deficiency in the statute that left Ledbetter without legal recourse in her discrimination claim. President Obama signed that piece of legislation into law in January 2009.


But those pesky facts don't seem to matter to Tomasky. The Court's conservative majority clearly cannot be motivated by its honest evaluation of the laws and Constitution. Seeking to explain why "hot-button" issues in the Roberts Court are getting decided on a one-vote margin while similar "hot-button" cases in the liberal Warren Court were often unanimous or carrying few dissents -- like Roe v. Wade, a 7-2 case -- Tomasky found a convenient villain in rich right-wing money men:

[N]o, we’re not “more conservative.” The main thing that changed between then and now, instead, is that rabidly right-wing billionaires started throwing many millions of dollars into politics, forming and funding groups like the Federalist Society, which have managed to assert their will. They represent about the same 30 percent they represented back when Barry Goldwater won the GOP nomination. It’s just that now they’re organized and lavishly backed, whereas before they weren’t. In the 1960s, Nino Scalia would’ve ended up teaching at Notre Dame law school (where he belonged)—a crackpot speaker on a marginal rubber-chicken circuit that mainstream America could have blissfully ignored, instead of sitting on the highest court in the land imposing his 16th-century will on the rest of us.

And so: If we get a 5-4 ruling against the Affordable Health Care act or any part of it, this is the context to keep in mind. It will be another in a series of ferociously ideological one-vote-margin decisions from the court that we do not need history’s perspective to decide is far and away America’s most ideological.

Judiciary Government & Press Michael Tomasky

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