Right-Wing Courts Run Berserk

by Molly Ivins

The devil and Tom Walker! Do you have any idea the extent to which the federal courts, and only the federal courts, have prevented the Texas Ledge from wreaking mayhem all these years?

That the writ of the Constitution extended to Texas at all was news to everyone here 30 years ago. We violated that sucker cheerfully seven days a week all year long in more ways than I can even remember. Then, slowly, very slowly, federal courts began pointing out that we couldn't do certain things. Like segregate the schools, torture prisoners, keep the mentally ill locked up in places that made Devil's Island look like summer camp.

And now the dimwits on the Supreme Court are giving Our Gang the go- ahead to abuse labor law and intellectual property laws. Just wait 'til you see the horror show this is going to land us in. I'm warning you, panic now before it's too late.

Did someone say they doubt the state of Texas would abuse labor law just because it now can? Do chigger bites itch? Is Houston hot in August? Katie bar the door. They're already doing it -- it's just that the victims no longer have a remedy.

For the Supremes to pretend that state workers have lost no rights because the Labor Department can come down here and sue on their behalf is ludicrous. The Labor Department isn't set up to do any such thing, and it would cost a fortune in tax money to make it so. I don't even want to think about the Lege and intellectual property -- these are the people who made it illegal to libel vegetables.

Justice David Souter, a Republican appointee who doesn't look like a wild-eyed anything, wrote in his dissent against the labor decision that it was based on a "demonstrably mistaken" view of history. "There is much irony in the court's profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the court abandons a principle nearly as inveterate and much closer to the hearts of the framers: that where is a right there must be a remedy."

In dissent against the Florida patent decision, Justice Stephen Breyer -- another guy who doesn't appear much given to high excitement -- wrote that the court was making it "more difficult for Congress to decentralize governmental decision-making and to provide individual citizens, or local communities, with a variety of enforcement powers." Breyer then observed that this move was "more akin to the thought of James I than James Madison."

Actually, what we have here is a rather clear instance of the growing menace of judicial activism by the very people who made judicial activism a swear word to begin with. Hey, when liberals were judicial activists, all the right- wingers said it was a terrible, horrible disgrace and had to be stopped before the nation was brought to its knees. Now that we've got right-wingers going berserk on the bench, we're all supposed to applaud and think it's dandy.

Check this for judicial activism:

• A federal court recently threw out the long-standing requirement for the Miranda warning to those arrested, informing them of their rights. Hey, who needs to know his rights in a situation like that, right?

• In May, the Court of Appeals in D.C. struck down a provision of the Clean Air Act on the grounds that it represented an unacceptable transfer of power by Congress to the executive. Cass Sunstein, an authority on the high court, wrote in The New York Times: "This remarkable departure from precedent could, if taken seriously, bring much of the activity of the federal government into question."

• The Court of Appeals for the 4th Circuit has overturned the Violence Against Women Act, Clean Water Act regulations, and the Driver's Privacy Protection Act, which prevents states from selling information on licensed drivers to private companies for profit. According to the 4th Circuit, these are all violations of states' rights.

• And don't forget the lovely three-judge panel of right-wingers who foisted Kenneth Starr on us all, to our continuing delight.

I did have to laugh at Justice Anthony Kennedy's explanation of his decision in the patent case: The principle of state immunity "is demarcated not by the text of the amendment alone but by the fundamental postulates implicit in the constitutional design." Kennedy found a penumbra, Kennedy found a penumbra.

Perhaps the most annoying thing about the self-designated "strict constructionists" -- apart from the real damage that they do to people's rights -- is their habit of cloaking their prejudices as the "original intent" of the framers, as though they were channeling Madison.

When you hear people tell you that such and such is "God's will" and that they know it because God told them so, don't you wonder about just when and how this chat with God took place? I have the same reaction to those who claim that they and they alone know the intent of the framers -- and who cares what precedent says.