by Beverly Mann
crossposted with The Annarborist


“The Supreme Court, issuing its first orders accepting cases for the new Term, on Tuesday edged toward analysis of the government’s authority to label information it has as a “state secret” and thus to prevent its disclosure in court. It will do so, though, only in a narrow context: the rights of defense contractors. The issue in two cases brought by major defense contractors is whether it is unconstitutional for the government to invoke the “state secrets” doctrine in a way that prevents a contractor from defending itself against a claim it did not live up to its contract.”

SCOTUSblog, Sept. 28, 2010

In an article featured on Slate, Dahlia Lithwick reports on Justice Clarence Thomas’s wife Ginni’s appearance at the Virginia Tea Party Patriots Convention on Friday. Ginni Thomas is an activist in the Tea Party and has started a web site called Liberty Central that accepts (apparently large) donations from secret donors that probably include CEOs and other top executives of large corporations. It also undoubtedly includes lobbyists. As in, Washington lobbyists.

Lithwick’s article is titled “The Battle Cry of a Supreme Court Wife” and subtitled “When Ginni Thomas rails against Washington elites, does it include her husband?” The gist of Thomas’s speech on Friday was screed was that powerful Washington elites see “the Constitution as an impediment to having power over our lives.” And at least with regard to the conservatives on the Supreme Court, she’s right. Thomas’s husband regularly joins with his conservative colleagues to undermine some of the most basic protections afforded to individuals by the Constitution.

An outsized percentage of the tiny number of cases that the Court agrees to hear each year are cases that a government entity—the federal government or a state of local government—or a government official or employee has asked the Court to hear, and in which the Court almost always has agreed to hear he case with the intent to rule in favor of the government or government official in a way that narrows or eliminates individuals’ rights to, say, be free of unreasonable searches or seizures of the individual by the government, or that further increases the already expansive Court-created immunities that governments and their employees have from lawsuit liability, or—a personal favorite or Ginni’s husband’s—removes constitutional restraints against states vis-à-vis individuals because Justice Thomas and his conservative colleagues believe that, as he has put it, the “dignity” of the states trumps the dignity of the individual.

In the view of that crowd, the Constitution is not an impediment to the governments’ power over our lives only if the power that the government wants to have over our lives concerns a “taking” of our real estate by, say, environmental rules; infringement of our right to practice our religion by, say, cooping a public school classroom to do it; or buying or owning a gun.

Or if the lives over which the government wants power are corporate lives.

As those of us who watch the Supreme Court closely know, the Court (by its own admission) looks the other way year after year, sometimes for a decade or two, as the lower courts interpret particular procedural or substantive rules of law in a way that violates the constitutional rights of parties to litigation, suddenly agreeing to hear a case that presents that issue only because it is, say, an oil company, or a tobacco company, or a defense contractor, represented by a member of a tiny claque of highly prestigious and extremely expensive Washington-based Supreme Court “specialists”, most of whom once served as law clerks for a Supreme Court justice.

Like standard-issue lobbyists who pedal access to legislators or members of the executive branch, these lawyers sell access to the justices; petitions bearing their names as counsel will be read by some of the justices; few other petitions, in civil cases or criminal ones, will be.

Except, of course, those filed on behalf of a government or government official or employee. Especially if they are asking the Court to limit yet further the constitutional rights of individuals or to expand still more the immunity from liability for governments and their employees.

It is no coincidence that the Court has agreed at the request of General Dynamics and Boeing, in petitions field for them by members of the Supreme Court specialist crowd, to consider whether the government’s lawsuit against these companies should have been dismissed on constitutional-due-process-of-law grounds, once the trial court ruled that under the state-secrets privilege the government could withhold information that might have helped these companies defend themselves in breach-of-contract cases filed by the government.

The Court has refused to hear constitutional challenges to trial courts’ dismissals of lawsuits by individuals because of the expansive state-secrets privilege; the government claimed that in order to defend itself against the claims, it would have to disclose state secrets, so the lawsuits must be dismissed. The Court’s agreement to hear the General Dynamics and Boeing cases, in which the two corporations were defendants in lawsuits filed against them by the government, is not inconsistent with its refusal to hear the cases of the individuals whose lawsuits against the government were dismissed under the state secrets privilege. But it is a safe bet that when the Court rules in favor of the corporations next spring, it will do so in an opinion so narrow that it applies only to corporations sued by the government in a breach-of contract case.

Or at least, that that is how the lower courts will interpret the ruling, and will be allowed to interpret the ruling, for years and years. Until another mega corporation, represented by a Supreme Court specialist, asks the Court to clarify that the rule of law also applies in other types of cases in which corporations are sued by the government.