In my last article ("Rights the Roberts Republican Court Has Taken From Us"), I identified three areas of Constitutional text which have simply been ripped out and thrown away by the Roberts Republican Court in this year’s term. With this column, I will identify more Constitution text discarded and Constitutional rights shredded by these extremist, rightwing, corporate ‘justices.’
I am offering thumbnail sketches of what the cases mean in actual law practice. But readers should understand that the writers shredding our rights spend hundreds of pages of sophistry, and constant lying about precedents and about legal analyses to justify their actions. What they write is public record. While often turgid and clearly illogical, the opinions are worth trying to read through. As are the dissents by sane Justices, which point out the legal errors and fabricated histories on which the Roberts Republican Court constantly relies, Your tax dollars pay these people fabulous salaries and perks to savage your legal rights.
The Fifth Amendment
The 5th Amendment is the one that used to say that police could not beat a confession out of a suspect, and were required to give every suspect “Miranda” warnings before any interrogation. A suspect had to be advised of his right to an attorney during questioning. As, for example, John Eastman asserting his 5th Amendment rights over 100 times when being interrogated about his efforts to help The Donald overthrow the elected government of the United States.
But on June 23, 2022, the Roberts Republican Court, in the case of Vega v. Tekoh, ruled that 5th Amendment rights no longer exist. In the case, a nurse was accused of sexually abusing a patient, here in L.A. A police interrogator refused to allow the nurse access to an attorney and inflicted physical coercion on the nurse to get the nurse to confess. When the nurse continued to refuse to confess, the cop threatened harm to the nurse’s family. That got the nurse to sign a false confession.
Two Los Angeles Superior Court judges, ignoring the Miranda violations, admitted the false confession at two trials of the nurse. The first trial ended in a mistrial with no verdict. In the second trial, a jury of his peers found the nurse not guilty, apparently understanding that the police had tried to fabricate evidence for a conviction, rather than searching for the truth. The nurse then sued the corrupt cop who had interrogated, assaulted and threatened him, under a Federal law that says cops can be held liable for violating Constitutional rights.
The Roberts Republican Court (Alito writing) then ruled that the Federal Law allowing people to sue cops who violate Constitutional rights was wrong. According to the Court, cops need tools like physical beatings, and other forms of coercion to do their work. This is similar to, but not identical to the 4th Amendment case in my last column, Egbert v. Boule, in which the Court ruled that government agents may now conduct warrantless searches and seizures, and use whatever force they consider necessary in the process. In Egbert, the Court was dealing with Constitutional procedural protections. In Vega v. Tekoh the Court was destroying a Constitutional substantive right.
Since the Roberts Republican Court has now approved torture and threats as a way of getting around people’s 5th Amendment rights, and approved allowed fabricated confessions to be introduced at trials, it is an open question whether people like John Eastman or the odious general Michael Flynn can now be tortured to provide answers to questions to which they want to assert 5th Amendment protection.
The Sixth Amendment
The 6th Amendment requires fair trials. It requires that defendants have the right to confront the evidence presented against them and to present evidence in their own defense. This is an Amendment that prosecutors have always hated. When police and prosecution investigators find evidence that throws a defendant’s guilt into question, prosecutors always, 100% of the time, try to hide that evidence from the defense, the court and the jury.
In past centuries, Supreme Courts had ruled that a prosecutor’s job is to seek justice, not just convictions, and that meant that prosecutors had to turn over exculpatory evidence to defendants, and if they didn’t, defendants’ convictions could be reversed when the evidence was discovered.
There are several projects, at law schools and other places, that routinely examine old cases and find convictions based on faulty evidence, often decades after the convictions happened. Hundreds of men (it always seems to be men) once on death row have been released after they were proved, years later, to be completely innocent.
But this spring, the Roberts Republican Court issued opinions in two cases holding that innocence is no longer a bar to the death penalty. The 6th Amendment doesn’t include any time limit on a defendant finding and presenting evidence that he is innocent. But the Roberts Republican Court held that such evidence must be found before all state appeals of a conviction are decided. Specifically, the Court held that if police or prosecutors succeed in hiding exculpatory evidence until after a conviction is obtained and state appeals are exhausted, then the Constitutional 6th Amendment rights no longer apply.
This is an extraordinary step. In the Arizona case of Shinn v. Martinez Ramirez, all the lower level Federal judges who reviewed the case were REPUBLICANS, and EVERY ONE of them found that new evidence showed that Defendant Jones probably was completely innocent of the crime for which he was condemned to death. The Arizona State Attorney argued that it didn’t matter, Arizona concedes the probable innocence of the defendant. But also argued that innocence is irrelevant when decided whether to vacate a death sentence. The Roberts Republican Court agreed - innocence is irrelevant.
There is, of course, a reason for this. Our prison populations are mostly Black and Latino men, unlike our general population. The death penalty, corrupt interrogations and bars on allowing defendants to present exculpatory evidence when they find it, are tools for maintaining “proper” caste order in our society. The poor, the minorities, the infirm, must be kept aware of their subordinate place. Harsh criminal prosecutions and penalties are “necessary” to that task.
In 1981, as a young attorney in the new Reagan Administration, John Roberts wrote a memo outlining how schools could be resegregated, by reversing the Brown v. Board of Education case and the 1965 Voting Rights Act could be eviscerated. Roberts is a pure, Indiana racist, raised to treat non-whites as non-equals. Since being appointed to the Supreme Court, he pushed through the decision that did destroy the Voting Rights Act, and then he cheered states that were gerrymandering voter districts to suppress non-white votes. Racist when he graduated from law school and racist today.
During Sam Alito’s confirmation hearings for his Supreme Court, it came out that he continued, through the hearings, to financially contribute to a group whose only goal was to resegregate his alma mater, and free White students and faculty from having to share the campus with “inferior” Black and Brown beings (except in service roles). Racist then, racist today.
It really isn’t possible for any educated person to believe that either Roberts or Alito actually believe that Black and Latino people are biologically inferior to, or even different from White people. So their insistent racism must be driven by something else. That something else is corporate power and the right of “superior” castes to rule our society. This is consistent with the Citizens United and Hobby Lobby cases in which the Court ruled that corporations have more rights than individual citizens.
As we will see in my next article in this series, the decisions of the Roberts Republican Court consciously, intentionally, falsify the facts of cases being decided and distort the law and legal precedents being cited. These decisions clearly reject ideas that the Founding Fathers wrote into the Constitution. The so-called “originalist” label for some of the arguments was created by corporate PR flaks and is almost always a cover for arguments that deny the intent of the men who wrote the Constitution and the Bill of Rights back in the late 1780s and early 1790s.