Fortunato talks Supreme Court

Here Come Da Judge

As the Court preps to weigh in on detainee rights, Stephen Fortunato (a great activist, and former associate justice for the RI Superior Court) has this piece in In These Times about the evolution of the Court from protector of civil rights to lap dog for “institutional power and prerogatives.”

Along with Chief Justice Earl Warren and Associate Justices Hugo Black, William Brennan and Thurgood Marshall – as well as his more cautious brethren, Justices John Marshall Harlan and Felix Frankfurter – Douglas and his colleagues viscerally understood Chief Justice John Marshall’s famous 1819 declaration that “it is a Constitution we are expounding.” They protected and expanded free speech rights for antiwar and civil rights activists, and drew within the Constitution’s protections many groups previously excluded: racial minorities, women, prisoners, probationers and school children.

The Bush-Roberts Court rejects this commitment to liberty and equality. Under Chief Justice John Roberts and his major domo Antonin Scalia, “the spirit of the laws” (to borrow the 18th century French philosopher Montesquieu’s apt phrase) exalts order over liberty, and institutional prerogatives – governmental or private – over the individual.

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