In the past, conservatives lamented the activist agenda of a Supreme Court controlled by liberals. Decisions loathed by the right due to the liberal bias they exude include Grutter v. Bollinger (2003), a verdict upholding affirmative action statutes, and McCreary County v. ACLU of Kentucky (2005), a verdict reasserting the separation of church and state as a constitutional norm. Supposedly, the activist nature of the Supreme Court changed with President George W. Bush’s appointments of Chief Justice John Roberts and Justice Samuel Alito, nominations offered to furnish the right with the strict constructionist high court they have demanded for decades.
But recent decisions rendered by the Supreme Court exhibit extreme levels of activism by a judiciary intent on protecting the agenda of special interests, specifically corporations. The 2010 ruling in Citizens United v. Federal Election Committee demonstrates a clear example of such bias when the Court essentially declared the First Amendment rights of individuals and corporations as one and the same.
Conversely, Justice Stevens' dissenting opinion in the case explained, “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Justice Stevens' assertion is a comprehensible rendition of the truth.
More recent judgments reveal the current Court’s pro-big business agenda. In a 5-4 decision issued in late May in the case of AT&T Mobility LLC, Petitioner v. Vincent Concepcion, et ux. the Court for all intents and purposes negated the ability of a state to pass laws “preempting” corporations from evading class-action lawsuits after settling disputes with dissatisfied customers. Delivering the opinion of the majority, Justice Antonin Scalia explained that the Federal Arbitration Act of 1925 prevents "state-law rules that stand as an obstacle to the accomplishment of the FAA objectives." Conversely, the dissenting opinion, put forward by Justice Stephen Breyer, said, "The Court is wrong to hold that the federal Act pre-empts the rule of state law."
In the end, the decision posited by the majority can be viewed as a loose interpretation of the FAA by the Court that infringes on states’ rights to regulate commerce within their own boundaries. In no way did the California law stray outside the guidelines of the Commerce Clause of the U.S. Constitution. Therefore, it is reasonable to perceive the high court’s verdict an activist decree intended to support corporate interests and not states’ rights.
Another example of the court’s predisposition to shore up the interests of corporations is Actavis Elizabeth, LLC, Petitioner v. Gladys Mensing, decided on June 23, 2011. By a margin of 5-4, the high court reversed the ruling of the 8th Circuit Court of Appeals and allowed generic drug companies to place minimal amounts of information about possible side effects on the drugs label. Ultimately, the ruling eliminates the ability of citizens to seek compensation when their well-being has been negatively impacted by the products of generic drug companies. The opinion presented by Justice Clarence Thomas on behalf of the majority stated, "We defer to the FDA's interpretation of its CBE and generic labeling regulations."
Allowing generic drug companies to operate recklessly without the threat of reprisal (in the form of a civil suit), clearly demonstrates a willingness of Supreme Court to ignore due process and equal protection of the law for average Americans. This ruling displays an activist agenda by way of a judicial decision designed to meet the aspirations of the corporate community.
There is credible evidence revealing that for decades, the Supreme Court has had a liberal agenda. However, examining recent decisions handed down by the high court substantiates an overall agenda that in no way lives up to conservatism. It appears the appointment of non-activist judges to the Supreme Court by the last Republican president to meet the demands of the right was only an illusion.
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