Outside the Law
Photo by Gary Leonard
PUEBLA, Mexico – Anyone wondering what a truly rotten Supreme Court looks like could do worse than glance south of the border to Mexico, where the 10 most powerful justices in the land have just issued a travesty of a ruling in the case of a crusading journalist called Lydia Cacho.
Nearly three years ago, Cacho co-authored an eye-popping book uncovering a child pornography ring in Cancun and exposing the high-level businessmen and politicians who both allowed it to flourish and, in some cases, indulged their own sexual appetites with girls as young as 4.
Several months later, she was arrested without warning, threatened with execution, shoved into a van, and driven more than 900 miles to the city of Puebla, not far from Mexico City.
Her harassment did not stop for a day and a half. She had a gun shoved in her mouth. She was threatened with rape, and worse. She was subjected to a humiliating strip search. Cacho believes she might not have survived the experience, but for the intervention of international human rights groups who bombarded politicians in Cancun, Puebla, and Mexico City with appeals for her release. She had anticipated the possibility of her peremptory arrest, and tipped off her friends and associates the second she was detained with a pre-arranged signal – setting off the alarm on her car.
Cacho suspected right away that she had been taken to Puebla at the behest of a rich businessman called Kamel Nacif, a Mexican denim magnate whom she had accused in her book of protecting her biggest villain, a Cancun hotel owner called Jean Succar Kuri who now faces multiple charges of child molestation.
Her hunch was more than confirmed two months later when tapes surfaced of conversations Nacif had held about the troublesome Cacho with several associates including Mario Marin, the governor of Puebla state. The conversations were foul-mouthed, misogynistic, and quite extraordinarily incriminating. Marin could be heard boasting that he’d given “a fucking whack on the head to that old bitch.” Together, they openly discussed having Cacho raped in prison. Nacif thanked the “precious governor” for ordering the journalist’s arrest and promised him several “beautiful bottles of cognac.”
Cacho sued Governor Marin in federal court with a whole laundry list of complaints – abuse of power, violation of her civil rights, bribery, and conspiracy to rape, among others. A Supreme Court justice called Juan Silva Meza launched a formal investigation and found ample evidence to bolster Cacho’s case. He recommended lifting Governor Marin’s immunity and letting him be prosecuted in criminal court.
The rest of the Supreme Court, however, chose to disagree. By a vote of six votes to four – taken at the end of last month – they decided to drop all charges against Governor Marin and said there had been “no serious violation” of Lydia Cacho’s rights. Some of the ruling relied on a technicality: Since the tapes were recorded illegally, the majority argued, they were not admissible as evidence. But the decision went further than that, effectively standing – as many commentators have suggested – as a carte blanche for elected leaders to do whatever they please and get away with it.
The press freedom watchdog Reporters Without Borders said the ruling gave “a real boost to impunity by clearing the governor of Puebla… despite overwhelming evidence.” Cacho herself has denounced the ruling as a strike against both freedom of the press and Mexican democracy, accusing the court of cutting a political deal to reach its decision rather than relying solely on legal argument.
As I say, we can be grateful that the legal system in the United States has not reached such levels of brazen defense of the indefensible. But, at the risk of souring everyone’s holiday celebrations, it is also worth asking whether we are really that far off. As a couple of eminent new books argue – one of them by Martin Garbus, perhaps America’s leading First Amendment lawyer, and the other by Jeffrey Toobin, perhaps America’s prime legal affairs journalist – something exceptional, if not unprecedented, is going on in the U.S. Supreme Court that raises serious questions about the separation of powers and the very thing the Court is designed to protect, the Constitution.
As we get ready for presidential primary season, it’s worth remembering that these sweeping changes are independent of the electoral calendar. Even if we have Democratic presidents as far into the future as we can imagine, it will take decades to undo the damage the Court has either done already or is likely to do in the next few years.
It is not just that the Court has swung alarmingly to the right. It is that a majority of its justices are members of the highly ideological Federalist Society, whose aims are not driven so much by legal thinking as by a specific political agenda. Toobin summarizes these as follows: “Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere.”
What is striking about this agenda, quite apart from its deeply reactionary nature, is that it is far from coherent on issues like states’ rights versus federal power, or even the right to life. What it seeks to do, rather, is ride roughshod on the sort of constitutional traditions most Americans hold dear – the right of recourse against corporate or governmental injustice through the courts, the aspirations to racial equality enshrined in Brown vs. Board of Education, the rights of criminal appeal and, in the context of counter-terrorism, habeas corpus itself.
The aim, as the Federalist Society’s chief inspiration and erstwhile Supreme Court candidate Robert Bork has openly acknowledged, is to roll back the government’s ability to check corporate power. It’s about creating a world where might makes right, where those in authority are untouchable, where – in a nutshell – checks and balances have diminished or disappeared altogether.
This has become possible, Garbus argues in his book The Next 25 Years: The New Supreme Court and What It Means for Americans, because of the politicization of the court – the quid pro quo of justices getting nominated and then pursuing a specific agenda once they reach the bench. At no moment was that politicization more blatant, or more ominous, than when the Supreme Court intervened to declare George W. Bush president in December 2000. This wasn’t just about a Republican majority on the Court ensuring the advent of a Republican president, although that would have been quite bad enough. It was also about highly ideological conservative justices understanding that the best way to achieve their own personal ambitions was to wave in a sympathetic president and then wait for him to make the requisite judicial appointments.
The calculation paid off handsomely. John Roberts and Samuel Alito are both bagmen for a radical strain of Republican thinking, and we can expect them – along with Justices Thomas, Scalia, and Kennedy – to issue a slew of assaults on abortion rights, consumer rights, environmental protection, due process, and more in the near future. As Garbus writes: “Presidents and Congress alone do not get us into wars, create torture chambers and detention centers, and violate our privacy … The courts must be complicit for all that to happen, and they are.”
Such will be George Bush’s most enduring legacy: a Supreme Court that defers to power even when it is corrupt or abhorrent to American traditions of decency, fairness and basic civilized behavior. It may not be as blatant as in Mexico, but it is just as despicable – and with far wider-reaching consequences.
Published: 12/13/2007
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