The Supreme Court – and us

... "And this is the way the world will end -- not with a bang, but a whimper," T.S. Eliot wrote of empty men in his poem Hollow Men. He spoke of those who did not leave a positive mark on their world. And, although the Supreme Court does now include three women, it is the nay-sayers, those negative ones who are making the biggest marks.

The three women (Ginsberg, Kagan and Sotomayer), plus Justice Breyer form the liberal block and are some times joined by Justice Kennedy. Often, however the frequent 5-4 majority votes reflect the Conservative view. Think of decisions such as Citizens United -- which has been considered the worst court decision in decades, remember the result of the Bush v Gore election decision, take note of all of the worker petition results in recent years, such as Lilly Ledbetter, when the employer side won. But in the decisions this week, for the most part, we have seen either in the majority or in sputtering dissent, the words of hollow men which do not ring true for most of us. In my view, the Supreme Court ended this term of 2012-13 with bangs and whimpers. Or one could put it in baseball terms, some balls, some hits, some errors…no home runs.

• Affirmative Action: Here my theory seems to not hold -- as this decision to not decide (in itself – a pass on a conclusion) was by a 7-1 vote to send it back to the lower courts which they instructed to re-write the guidelines. Justice Ginsberg in her dissent, took note of the de facto segregation in Texas and the need to consider race to continue diversity. According to this article: "Monday’s decision let stand, for now, a longstanding but fragile societal compromise, one that forbids quotas but allows using race as one factor among many in the admissions process."

Many, however, believe that this is yet another blow to affirmative action in the long run, as it encourages public universities to further diminish the role of race as a consideration in admissions policies.

• Voting Rights Act: On this issue, the Justices chose to look at the Act in the broadest fashion, acting not only on the matter relating to the petition of Selby County Alabama, but on this section as a whole and how it pertains to pre-clearance requirements. In current law, counties or areas which have had a record of poor voter rights are required to get prior Justice Department approval to permit changes in election procedures. By ruling that racial disparities are no longer seen in voter registrations the Court indicated that this section of the most successful civil rights legislation was no longer necessary.

By a stroke of this decision, they said we are a color blind nation -- minorities have achieved parity. In this decision they closed their eyes to matters of voter intimidation, poll challenges, decreased hours and polling places in minority neighborhoods and voter ID regulations in many red states. They ignored the hours long waits to vote in places such as Florida or Virginia. The proof now required, demands one to show discrimination after an election, rather than forestall it before it happens. As Congressman John Lewis said after the decision, "this vote placed a dagger in the heart of this law."

Do you remember the Bridge at Selma? I do, and I remember the powerful speech that President Johnson gave after that horrific day in which he promised that the Voting Rights Bill would pass.

That was a short 50 years ago, but the words still ring true. The Justices live in Washington and cannot be unaware of the political climate. In fact they seem to have placed their political hats on in this decision, because they clearly have not made this decision on the merits of the case. Here they are following a recent trend. When having to right a civil wrong, they rule very narrowly and when being challenged on political issues they rule broadly on the conservative side. Salon has proposed that Congress make the Law applicable to all 50 states and thereby negate this decision -- a very novel approach.

• DOMA and California's Prop 8: The discriminatory Section 3 of the Defense of Marriage Act (DOMA) was found to be unconstitutional by a 5/4 divided Supreme Court. That section of DOMA only permitted man/woman married couples to enjoy Federal rights and benefits, and specifically excluded same-sex couples from exercising those same rights. It is unfortunate that Congress passed DOMA in 1996 with large margins, and President Clinton signed it. Subsequently, Mr. Clinton has renounced this law, which has long been a beacon for the religious right.

In fact states were mobilized during the 2004 Presidential election with the so-called Moral Majority anti same-sex marriage equality movement. Some say this Karl Rove engineered campaign actually paved the way for a Bush victory. Legalizing discrimination is contrary to what we define as our American Way of life, yet as one can see, it surely happens. It is still legal in some places to discriminate against gay or transgendered job applicants. Again, this seems contrary.

Here, the Court ruled narrowly allowing married gay couples to apply for Federal benefits only in those states where their marriage is legal. So if one lives in one of the 13 states where marriage equality is in effect, one can file a Federal Tax return as a married couple or apply for spousal insurance coverage on a Federal job. If one lives in a state such as Virginia, where this is not the law, one's status is unclear at this time.

Surely the justices should have done a better job on this matter. While they looked at California’s Proposition 8, they sent it back with no real decision, concluding that the parties contesting it had no "skin in the game," i.e. that they did not have legal standing to oppose it. So as of now, marriage equality is now the law in California and a several years wait for implementation has ended. By not acting broadly, by not deciding these questions as a national issue, the Court has again failed the rest of us. Once again, discrimination is not legal -- I am not saying it does not happen -- but rather that it should not... but that is a discussion for another day.

Where should we go from here? How can we make our Court less tied to party or class and more tied to the Bill of Rights? How can we get our dysfunctional Congress to enact provisions such as immigration reform and real voting rights reform? I do not have the answers as I pose these questions in a real quest for information. Let me hear from you and learn your solutions to the real problems -- the ones involving each of us in some way. Because, if we see wrongs and do not speak out, we then perpetuate them.