Anybody who follows the Inky closely knows that in dealing with Supreme Court Justice Sandra Day O’Connor’s visit to Philadelphia on July 4 to receive the Liberty Medal, the paper would treat her with kid gloves and allow no dissident voice to be heard criticizing her record. The Inky is a promotional newspaper, one that gets on each celebratory bandwagon that involves Philadelphia, and provides lavish and uncritical coverage (the Inky’s treatment of the award of the Republican Convention to Philadelphia in 1999, and the death of Cardinal Krol in 1996 were notorious cases). It also leans over backwards to prove its absence of liberal bias by treating conservatives and rightwingers with great generosity.
In dealing with O’Connor’s visit the Inky failed to publish a single editorial or Commentary piece on O’Connor, offering only a lengthy front page article by James M. O’Neill and Stephen Henderson on “City honors O’Connor at key moment” (July 3, 2003). That article makes O’Connor out to be an unqualified marvel, her Liberty Medal awarded for qualities of “independence, leadership, and a nose for justice.” Quotes are given that she is a “trailblazer and a pioneer,” “receptive to compromises,” and altogether meritorious. No critical analysis or word is to be found anywhere in this article. The authors cite her recent decision that “preserved the use of race in college admissions” and another that “decried the quality of defense lawyers in death penalty cases,” showing her qualities of independence and “nose for justice.” She is also noted for her conservative core beliefs “usually supporting states rights and a smaller federal role” and on “criminal procedure.”
Nowhere does this piece mention the immensely important 2000 case of Bush v. Gore, in which the five Republican Supreme Court Justices, including O’Connor, interrupted a Florida vote count to give the presidency to Republican candidate George Bush. Constitutional law professor Jamin <B.Raskin> says that this decision was “quite demonstrably the worst Supreme Court decision in history,” in which the “Bandits in Black Robes…rushed to aid the political party of property and race privilege in a debased partisan way.” Raskin argues that this decision was worse than the 1857 Dred Scott decision which found African-American non-citizens, because Dred Scott was at least closely reasoned and consistent with the nature of the original constitution, which was a white man’s compact. Bush v. Gore “mocks legal reasoning and represent an affront to the rule of law.” This view is widely held in the law profession and elsewhere, even if it is suppressed in the Inky.
One of the most notable features of Bush v. Gore was the willingness of the court majority to run roughshod over states rights, as it twice overturned Florida state court actions on the 2000 election despite the fact that Article II of the Constitution leaves it to “Each State” to appoint its electors. States rights protagonists O’Connor and company displayed here an opportunism and politicization of justice that would be hard to surpass. The Inky has never had a Commentary column by Raskin or anybody else seriously analyzing Bush v. Gore, and as I pointed out in “Profiles in Cowardice,” they never assailed that court decision editorially back in 2000, saving all their moral indignation for Clinton’s last minute pardons. The Inky has also never had book reviews of Raskin’s fine book on Overruling Democracy (2003) or former Los Angeles Prosecutor Vincent Bugliosi’s powerful analysis of that decision in The Betrayal of America (2001).
While O’Connor and the Rehnquist court were wonderfully generous to George Bush in giving him federal court standing and protection in Florida in 2000, they are much harsher with ordinary citizens, especially minority citizens. In Allen v. Wright (1984), O’Connor’s opinion for the rightwing majority was that African-American parents who wanted the IRS to enforce the law by withdrawing tax exemptions from racist schools had no standing because they were not demonstrably personally injured–that is, citizens have no general right to make government comply with the law. Of course there were no injured plaintiffs in Bush v. Gore either, only “a candidate desperately looking for ways to prevent the counting of votes” (Raskin). The majority decision did argue that counting the votes could cause “irreparable harm” to George Bush, but it did not strike them that not counting them could cause irreparable harm to Al Gore. And of course O’Connor and company gave no weight to the only clear and unjustifiable “irreparable harm” flowing from their decision, which was its actual disenfranchisement of many Florida voters. But people may not be aware of the fact that Bush v. Gore says that “The individual citizen has no federal constitutional right to vote for electors for the President of the United States”! Individual voting rights are a matter for decision by the states, although Bush v. Gore shows that states rights on this matter can be overridden by a politicized judiciary.
O’Connor’s important 1993 opinion in Shaw v. Reno also gives standing for federal judicial intervention in a hugely biased fashion hurtful to blacks. A conservative law professor at Duke and several other aggrieved white voters in North Carolina challenged a redistricting of voters in North Carolina by the North Carolina legislature that had created two majority black districts (of 12 total districts in the state). This led to the election of the first black representatives from that state in Congress since Reconstruction. The plaintiffs argued that the new districts violated the Equal Protection Clause of the constitution because it was gerrymandered to achieve its numerical result. O’Connor gave those aggrieved white voters standing, although they were not deprived of the right to vote or run for office, and she contended that “The deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a ‘color-blind’ electoral process.” She even referred to the intentional construction of black districts as “political apartheid,” a phrase she has never used to describe cases of actually existing apartheid in the states. But color-blindness had never been evident in the history of voting in North Carolina (or elsewhere), and nothing in the Constitution speaks of such a right.
O’Connor even conceded in her opinion that race regularly entered into calculations in redistricting, and she and her colleagues have never objected to the absolutely commonplace gerrymandering to protect the seats of established white legislators. In fact, in 1986, in Davis v. Bandemer, O’Connor argued for the majority that a Republican gerrymander in Indiana was entirely immune from judicial scrutiny! In this case, O’Connor’s decision overturned that of a lower court that “said that Republicans had manipulated district lines to give themselves an advantage over Democrats” (NYT, July 1, 1986). Manipulation of district lines to help Republicans win elections is OK; but redistricting in accord with voting rights laws attempting to rectify racist exclusion and give black people congressional representation is unacceptable.
In short, O’Connor and her Republican colleagues on the Supreme Court only selectively override the right of states to fix their own electoral boundaries, in Shaw v. Reno granting white petitioners the right to be part of a white majority, at the expense of consistency and the right of blacks to get political representation. As Raskin points out, “This double standard, which masquerades as ‘color blindness,’ requires tremendous judicial interference with the political processes of the states to prevent the creation of aesthetically displeasing majority-minority districts. Like Bush v. Gore, the Shaw doctrine also betrays original understanding jurisprudence because it has been an article of faith with conservatives for decades that the intent of the 14th amendment had nothing to do with districting practices, since the whole purpose of giving Congress enforcement powers…was to empower it to take remedial action against white supremacy.” O’Connor in Shaw was serving white supremacy. This decision threw into question 26 other districts created after the 1990 census under the Voting Rights Act. All involved patterns of racist under-representation that O’Connor’s opinion will help maintain.
O’Connor also served in that role in her majority opinion in City of Richmond v. J. A. Croson Company (1989), which overturned a minority set-aside program in Richmond, Virginia, and at the same time overturned a prior Supreme Court decision that had justified such programs on the grounds of long and massive anti-black discrimination in the construction trades. Writing for himself and two other dissenting justices, Thurgood Marshall said that “today’s decision marks a deliberate and giant step backward in this country’s affirmative action jurisprudence.” One estimate was that 190 cities and 36 states would have to dismantle such programs in the wake of that decision. In this opinion O’Connor expressed concern at the possible “stigmatic harm” to blacks from affirmative action discrimination in their favor, and its possible generation of “racial hostility.” Stigmatic harm to whites benefiting from longstanding racism did not bother O’Connor, nor did the racial hostility expressed in the discrimination that the set-aside was intended to remedy. She was also willing in this case to override that “judicial restraint” and deference to state and local judgment that the conservatives claim as fundamental principles, but which they overrode here as well as in Bush v. Gore and Shaw v. Reno.
In still another racist opinion, Coleman v. Thompson (1991), O’Connor held that Virginia death row inmate Roger Coleman would not be allowed to present new evidence of his innocence because his attorney had been three days late in filing Coleman’s habeas corpus petition. Because of this “procedural default,” our heroine, who the Inky reporters lauded for her “nose for justice,” wrote that “This case is at an end,” and Coleman was then quickly executed.
I have not exhausted the negatives in Sandra Day O’Connor’s record as a Supreme Court justice, which closely overlaps the record of the Rehnquist Court as a whole. That court has played a truly reactionary role in American life, steadily undermining the work of the Warren Court, and preparing the ground for Bush-Ashcroft. Civil rights, civil liberties, the ability of governments-federal and state/local-to serve ordinary citizens have been relentlessly eroded by the highly partisan Republican majority. Their decision in Bush v. Gore was a huge scandal, that “made it impossible for citizens of the United states to sustain any kind of faith in the rule of law as something larger than the self-interested preferences of William Rehnquist, Antonia Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor” (Jeffrey Rosen, George Washington University).
It tells us a great deal about the Inky that it can only offer apologetics for Sandra Day O’Connor, and implicitly the Rehnquist Court. This performance is regrettably consistent with a great deal of its news and editorial work.
EDWARD S. HERMAN is Professor Emeritus of Finance at the Wharton School, University of Pennsylvania, an economist and media analyst. He is author of numerous books, including Corporate Control, Corporate Power (1981), The Real Terror Network (1982), Manufacturing Consent (1988, with Noam Chomsky), Triumph of the Market (1995), and The Myth of The Liberal Media: an Edward Herman Reader (1999).