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Legal Learning: U.S. Supreme Court not so liberal

From James H. Manahan, J.D.

The recent decision of the United States Supreme Court invalidating Defense of Marriage Act has led many to believe that the Court has become much more liberal, like a branch of the ACLU that now protects the rights of minorities. That case struck down DOMA, which limited federal marriage benefits to opposite sex couples, on the ground that the government cannot discriminate against same sex couples legally married in their state.

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However, let’s take a look at other recent decisions of the court. The majority of the nine justices are still eager to limit people’s rights.

In Salinas v. Texas the majority said that if you exercise your right to remain silent outside of an in-custody situation, your silence can be put into evidence at your trial and used against you.

In Vance v. Ball State University, the majority limited the right to sue for a supervisor’s racial or sexual harassment, saying that a “supervisor” is not a boss who directs your work, but only a person who can hire or fire you.

In University of Texas Southwestern Medical Center v. Nassar, the majority imposed a more difficult standard for “retaliation” claims under the Civil Rights Act, rejecting long-standing interpretations by the EEOC.

In Maryland v. King, the majority ruled that the police can take DNA samples from you when you’re arrested, even without a warrant or any basis for suspicion.

In Shelby County v. Holder, the majority invalidated part of the 1965 Voting Rights Act (which they had upheld four times previously) and said that preclearance of election changes in the Deep South are no longer necessary.

In Clapper v. Amnesty International, the majority threw out a lawsuit challenging the government’s surveillance of citizens, saying that the plaintiffs could not show that they were spied on. Since the surveillance is secret, of course, that means that nobody can ever challenge it!

In American Express Co. v. Italian Colors Restaurant, the majority decided that American Express can prohibit class-action arbitration challenging its power to charge credit card fees 30 percent higher than anyone else, even though individual arbitrations would be way too expensive to be practical. Too bad for you, Mr. or Mrs. Consumer.

Who are the five men who made up this majority? In all but one case, they were Chief Justice John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. All five were appointed by Presidents Reagan, Bush I, or Bush II. The four dissenters were Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, appointed by Presidents Clinton or Obama. It is obvious that there is a huge and long-lasting difference in which President appoints Supreme Court Justices! The present conservative majority cannot be described as liberal, despite the DOMA decision.