The Miami Herald - Opinions an Ominous Sign of Things to Come
By Senator Joseph R. Biden, Jr.
The U.S. Supreme Court recently announced the final decisions of this term.
In an ominous sign of things to come, the court's newest members, Chief Justice John Roberts and Justice Samuel Alito, authored opinions in a series of divisive 5-4 decisions that showed utter contempt for recent precedent and eroded some of our most fundamental individual rights and civil liberties.
Two of their opinions erased decades of hard-won progress for minority and gender equality and severely curtailed the Constitution's assurance that women and minorities will receive equal protection and fair treatment.
The first opinion turned back the clock on the country's achievements in advancing racial diversity in our public schools, dealing a major blow to the promise of equality and opportunity of the court's 53-year-old landmark decision in Brown v. Board of Education. Most of the desegregation plans implemented by public school boards across the country following Brown to end racial segregation would have been unconstitutional under the new rule announced by the Roberts court. Our children would still attend schools segregated on the basis of race, and our society would not have made the important, but incomplete, progress we have made toward racial equality.
The second opinion, just as destructive, prevented a female employee from recovering pay in a gender discrimination case, even though she demonstrated that she had been paid significantly less than similarly situated male colleagues.
The court's newest members also showed marked facility for manipulating First Amendment precedent, construing it narrowly in one case and expansively in another to achieve particular results. The first opinion drastically cut back the Constitution's protection of public school students' rights of free speech. The second opinion struck down key parts of campaign finance reform legislation that limited the influence of special interests in our elections.
These opinions will reduce frank and full discussion of timely and controversial topics in our public schools, increase the influence of big money in politics, alienate an increasingly cynical electorate and impugn the integrity of our democratic elections.
Still another 5-4 decision foreshadowed a dramatic expansion of unchecked Executive Branch authority and a dilution of our constitutional system of checks and balances. In a case addressing whether taxpayer dollars can be spent on the president's faith-based initiatives, the court held that while Congress is accountable -- as it should be -- to citizen taxpayers, the president is not. With 18 months remaining in the term of a president who has operated secret prisons; detained and interrogated terrorism suspects in violation of U.S law and international treaties; and eavesdropped without a warrant on Americans' conversations, the court's expansion of presidential authority is in a word, alarming.
I was concerned during their confirmation hearings that Chief Justice Roberts' and Justice Alito's appointments would herald a new era of disdain for established precedent; of diminished protection of the equality of minorities and women (the chief justice has dismissed gender discrimination as a ``perceived problem''); of safeguarding the privileges of the powerful, but not the rights of the vulnerable (he also called privacy a ``so-called right''); and of expanding executive authority. I was tough on them during the confirmation hearings, but over a year later, it's apparent we in the Senate weren't tough enough. The individual rights and civil liberties of every American would be threatened even more if another conservative is allowed to serve on the Roberts court.
The court's newest members are rewriting the Constitution according to their vision and remaking the court -- long a protector of human dignity and liberty, a tribunal before which David and Goliath stand on equal footing -- in their image. They've already turned the court upside down -- and this is only their first term.
Sen. Joseph R. Biden Jr., D-Del., is a senior member and former chairman of the Senate Judiciary Committee