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Could the Supreme Court’s Recent Rulings Pave the Way for Bush to Pack the Federal Court w/ Conservative Judges?

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Attorney Martin Garbus, author of Courting Disaster: The Supreme Court & the Unmaking of American Law, reviews the Court’s recent session and its impact on the future of the federal courts.


AMY GOODMAN: It was a historic session for the Supreme Court. Affirmative action was upheld, anti-sodomy laws overturned. None of the justices stepped down. With these three stories making the headlines, the court though also made several other significant rulings.

There’s a case of Nike vs. Kaske. A California activist sued Nike for publicly making misstatements about its use of overseas sweatshops. Nike appealed the case to the Supreme Court but the justices decided to dismiss the appeal. Now the case will go forward in a California state court. The court also last week upheld the Children’s Internet Protection Act, which requires libraries to place filtering software on its computers connected to the Internet. And last week the justices overturned the death sentence of a Maryland man, Kevin Wiggins because he had received ineffective counsel.

Today we’re going to review some of these cases and talk about the overall session of the Supreme Court with Martin Garbus. His most recent book is Courting Disaster: The Supreme Court and the Unmaking of American Law.

Welcome to Democracy Now!


AMY GOODMAN: It’s good to have you with us. Before we talk about the overall picture of the decisions that were handed down, we have spent several shows looking at the affirmative action case as well as the case that struck down the anti-sodomy laws, the decision and people be can go to our website and look at that case, the most recent one this past Friday. But let’s talk about the Nike decision.

MARTIN GARBUS: The Supreme Court ducked an issue that it should have handled. In the Nike case, Mark Kaske who is an activist sues Nike for remarks that Nike made in defense of its position that it was not a sweatshop. The Supreme Court originally took the case. Under that—under that case not only could a corporation be sued, Nike, but a labor union that gave misleading statements could be sued. And a not-for-profit, an activist organization could also be sued. If they were to issue pamphlets or hand bills that were in any way inaccurate. So the case is larger than just Nike. It’s a very important free speech case. It allows the public debate to continue. The law can be used against anybody.

In California Nike lost at the highest level. Nike appealed. The Court decided to take the case in January. And then in June five or six months later, the court decided not to take the case because it was premature. It was an important issue. I think the court should have decided it. If you read the decisions that came down when the court says they’re not going to take the case, you can get a fair idea how the judges are going to rule on the case ultimately. You had three judges who wanted to take the case, Breyer, Kennedy and O’Connor and given the fact that it’s a free speech case probably Kennedy and Scalia would also vote to strike down the law.

AMY GOODMAN: Explain who Mark Kaske is.

MARTIN GARBUS: Mark Kaske is an activist, who was promoting a campaign against Nike claiming that it had sweatshops throughout the country — through uh — overseas, and Nike became the poster boy for the globalization debate. And he focused on that and then he filed this lawsuit in California. California is the only state that has such a law. He becomes kind of an independent attorney general and it’s really a very interesting democratic concept, that a citizen can go to court if the government doesn’t go to court and try and redress certain wrongs. The California statute is remarkable. The question is how can it be used in a way that it doesn’t stop the debate.

AMY GOODMAN: What about the truthfulness of what Nike was saying, what it was claiming about its use of sweatshops?

MARTIN GARBUS: Kaske said what Nike was saying was untrue. Kaske said that the allegations or defenses that Nike had, that it had to pay those wages to be competitive in those markets and in fact Nike was doing a good thing by paying people these awful wages.

The probabilities are that Nike exaggerated and made misleading statements and made untruthful statements. The question is in the public debate should that be permitted. It is permitted let’s say in the area of Libel law. There’s a concept that says lies are necessary so the truth can come out. Now that’s a legal position of the Supreme Court, but it’s also the position of dictators throughout the country, the justification for lies, as to whether or not you protect against it or not. So the probabilities are that Nike’s language is inaccurate. And the question is whether or not they should be held responsible under a statute like this.

AMY GOODMAN: Whether it’s consumer or commercial speech, that matters?

MARTIN GARBUS: Well, it matters—whether the Nike speech is commercial or not commercial speech, certainly does matter. And I think given that fact that everybody pretty much agrees, that although the Nike ads didn’t say we’re selling shoes, and didn’t have pictures of shoes, were just public statements about the whole question of globalization, one assumes that the reason Nike was doing that was to sell shoes. That they knew that people didn’t want to buy shoes from a company that might be exploitive. So it is significant, the context of those ads.

AMY GOODMAN: In terms of presidential politics, we have a press release from Congressman Dennis Kuccinich who applauded the Supreme Court’s refusal to consider Nike’s, what he called “right to lie” claim. The claim that free speech protections extend to corporate public relations and advertising.


AMY GOODMAN: On the issue of ineffective counsel for people on death row, can you talk about that case, the case of Kevin Wiggins.

MARTIN GARBUS: In the Wiggins case, he allegedly killed a 77-year-old lady, Florence Lacs, during the course of a robbery. The Wiggins case is interesting for all different kinds of reasons. The court held that he had ineffective counsel. That counsel did not present to the jury during mitigation. The fact that when he was six years old he was sexually abused. The fact that when he was 6 years old he left his mother and went through variety of foster homes. That from 6 to 18 he was consistently sexually abused wherever he went. And also had history of mental retardation. So what the Supreme Court said was, the failure of the defendant — of his counsel, who was a public legal defender — the failure of his counsel to raise those issues in mitigation after the conviction, was ineffective counsel. Now, this is also one of the cases that is a remarkable break in the same way that the affirmative action case is, in the same way that the Lawrence case, the gay case is a break from the court’s position, and it’s a very interesting question as to why the court has broken. I think what’s happening is everybody is looking at the last month of the Court and saying, my, God, it’s a totally different court. It’s a liberal court, it’s a moderate court, without looking at what’s happened previously. This court has also upheld the Three-strike law. And this court in a number of situations has struck down the ineffective — the cases where they claim that counsel was ineffective.

One of the interesting things that happened in the Bowers vs. Hardwick case and the Lawrence case, the gay case before the Supreme Court, was that Justice Kennedy in striking down the law looked at the decisions that were rendered in Europe and throughout the world and said that that was relevant to American law. That had never been done before. And Scalia has always claimed that Americans have the finest law and should only look at its own law. Now in the area of capital punishment, if you were to look at the law throughout the world and look at how it’s administered, clearly America is distinct and unusual in its harshness and in its punishment orientation. So that one could hope that if they ever get a straight capital punishment case, that they would use the same kind of legal reasoning, namely looking throughout the world.

Looking what’s happened in states and recognizing we’re one of the very, very few countries that punish and kill people. Now that again would require Justice O’Connor to totally reverse her position. Which she did in the gay case. As you remember in the gay case it reverses the 1986 case called Bowers vs. Hardwick — O’Connor had been in the majority to uphold the sodomy law. And here in this case 17 years later she totally reverses her position.

So a very interesting question is why is the court reversing itself in very fundamental areas? Has the court changed, has it become liberal? Or is this a reaction to Bush against Gore. Is it an attempt to make the court appear different and is it an attempt also, to undercut the Democrats when they go after particular judges who have very conservative backgrounds? Now the Republicans can say, look you had conservative judges like O’Connor and Kennedy, they’ve now changed their positions. People change on the court. Don’t hold against our nominations, says Bush, their previous histories. So it could be very effective in undercutting the Democratic position and the fight over judicial nominations.

AMY GOODMAN: On the issue of ineffective counsel for people on death row, wouldn’t this mean that pro-death penalty activists would fight to pour money now into state legal centers to make sure that ineffective legal counsel can’t be used as a reason to overturn a death row decision, a decision to put someone to death?

MARTIN GARBUS: I don’t think so. Because I think that the number of cases that get to the Supreme Court. The Supreme Court hears 75 cases a year. So you have one death row case coming up. Since they have taken this, they might not take another one for two to three years. The fact is that there are hundreds, many hundreds of death cases so I don’t think anybody is going to pour money into legal aid operations or defense operations.

AMY GOODMAN: We’re talking to Martin Garbus. Martin Garbus is a civil liberties attorney as we review the —- what many call a momentous term of the Supreme Court. What do you make of—-none of the Supreme Court justices, all age averaging around 70, are not stepping down.

MARTIN GARBUS: Well I think that in the Supreme Court, a life appointment generally means a life appointment. The number of judges who step down when they’re not senile or if they’re not very, very ill is very, very few. I think that Rhenquist feels he has a legacy to leave. O’Connor now, it’s clearly O’ Connor’s court.

AMY GOODMAN: What do you mean by that?

MARTIN GARBUS: The last 13 decisions were 5-4, O’Connor was in the majority in every single case. You have four liberals, four conservatives, so O’Connor becomes the swing.

And I think that she would be reluctant to step down. This is a woman who has, if you look at her past history, has been extraordinarily aggressive in getting what she wants. I think now this court has become hers. So I don’t think she’s going to step down. John Paul Stevens who is the oldest of the judges sitting, is one of the most liberal judges of the Court. And he recognizes that if he stepped down now the appointment that would follow him would certainly not be liberal. And he would not want to let that happen.

AMY GOODMAN: There were interesting reactions to the various cases this weekend. Among them the Senate Majority Leader, Bill Frist. Dr. Bill Frist. He said that he will now back a constitutional amendment to ban gay marriages in the United States. He criticized Thursday’s Supreme Court ruling overturning the anti-sodomy laws saying, “I have this fear that this zone of privacy that we all want protected in our own homes, is gradually being encroached upon where criminal activity within the home would in some way be condoned.”

MARTIN GARBUS: Well, I think he’s reading the case exactly wrong. What the court is saying is that the conduct in the home is not criminal. And what the court is saying is that there’s now a wider area for people’s liberty. It’s a gay case dealing with gay rights.

Basically what it does is expands the right of liberty to include —- allow people to have liberty in their own homes to do exact exactly what they want sexually. So it’s certainly—-he’s totally twisted it around. What the court does is it’s creating a zone of privacy over certain areas.

AMY GOODMAN: Doesn’t this further protect Roe v. Wade upholding the idea— I mean privacy is not written into the constitution, but they’re saying that we have a right to privacy.

MARTIN GARBUS: You’re absolutely right. What the court did—this also got the conservatives Scalia and Thomas very angry—is that the majority in the Lawrence case kept reiterating that Roe v. Wade is the law. That it was expansion in a way, it was consistent with Roe v. Wade_. And what the court also did is—_Planned Parenthood v. Casey, another case that upheld the right to abortion. Those two cases were under attack. The feeling was that if you had one or two judges coming in from the conservative side, because there was stepping down, that Roe v. Wade and the other abortion cases were at risk. Now it’s going to be a little harder. Because you had a majority of the Court repeat and reaffirm Roe v. Wade in the same way that in the affirmative action case, the court repeated and affirmed Judge Powell’s decision in Bakke upholding racial diversity. That is a surprise, and it will make difficult any attacks on abortion or on affirmative action.

AMY GOODMAN: Let me ask something. The woman who is Roe in Roe v. Wade has said she wants it over turned, she’s become anti-abortion. It was her case that was first brought forward to challenge the anti-abortion laws. Could that have any effect? Does she have standing because she is the Roe in Roe v. Wade?

MARTIN GARBUS: No. In other words, the court adjudicated a certain issue at a certain time. She can’t come in now and say I’ve changed my mind. No.

AMY GOODMAN: I’m looking at Linda Greenhouse’s piece in The New York Times “In a Momentous Term, Justices Remake the Law in the Court.” And it says, talking about the momentous decisions of the last week on the anti-sodomy laws and upholding affirmative action, These rulings followed by several weeks a decision that was in many ways equally surprising, opening states to lawsuits for violations of the Federal Family and Medical Leave Act. Chief Justice Rehnquist described that law as an appropriate exercise of congressional power to combat stereotypes about female workers’ domestic responsibilities…thereby dismantling persisting gender-based barriers facing women in the workplace.

MARTIN GARBUS: This is of course—this again is a reversal of what the court has been doing the last few years. Over the last few years court has been striking down congressional legislation that is aimed at protecting a woman, let’s say something called the Violence Against Women Act, which allowed women who were raped and were not getting justice in the state court system, to walk into the federal system and get damages. Rehnquist struck it down for pretty much the opposite of the reasons that he’s now giving in this case. So to some extent one could say it’s inexplicable, unless you start to say this is a reaction against Bush v. Gore, that the court wants to undo the damage that was done by Bush v. Gore and wants to present itself in a different light.

AMY GOODMAN: What about the case of the appointment of Miguel Estrada and what are these decisions, what could these decisions mean for that?

MARTIN GARBUS: Well, I think that what this does is it effectively helps the Bush position, when he puts up judges like Estrada or Jeffrey Sutton or Charles Pickering who have bad previous histories, Pickering in race, Estrada in a variety of areas, he can now say, don’t hold against them what they have done before because these judges are capable of change. There have been justices on the Supreme Court, Blackman most noteworthy who change a position over a period of time. It’s very, very rare. But this to some extent helps the Republicans to say, this is the kind of man he is, don’t hold against him what he did 15 or 20 years ago. So I think it’s a very — it’s an intelligent political position for the court to do this. It helps the Republican nominations.

AMY GOODMAN: Scalia spoke out on the issue of overturning the anti-sodomy laws. How unusual was it to read the dissent from the bench? And he talked about the culture wars. What are these decisions about in terms of cultural developments and legal principles?

MARTIN GARBUS: Well, it’s not that unusual to read a decision from the bench. I would say it happens about once a month.

AMY GOODMAN: Any judge can decide to do that?

MARTIN GARBUS: Any judge can decide to do that. So Souter recently was upset about something, and he read the decision from the bench. With respect to the cultural wars I think he’s right. I think, if you look at a textual analysis of the law, one can say Scalia and Thomas are right. Namely, that here the court is taking cases that have not been with us that long and is prepared to reverse it. Here the court is looking at what is happening in society and as a result of what’s happening in society, they’re prepared to change the laws to conform to what’s going on. I mean I was — Saturday I was at the gay pride parade. And the whole idea that certain sexual actions could be prohibited against the United States when you have such a substantial population, would have been astonishing had Bowers v. Hardwick come down now, given all the changes in the country. So I think to some extent it is the cultural wars. This court is becoming sensitive to the elections. It’s becoming sensitive to the way the rest of the country operates. But it doesn’t mean that in areas like capital punishment where the court should make the same decision, that it’s going to do it.

And I think what Linda Greenhouse may be overlooking is she’s looking too much at the last month of decisions without paying attention to the previous five or six months of decisions.

AMY GOODMAN: Well I want to thank you very much, Martin Garbus, for joining us. He is author of the book Courting Disaster. He is a civil liberties attorney here in New York.

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