John Whitehead's Commentary
Justice Sleeps and ‘We the People’ Suffer: No, the U.S. Supreme Court Will Not Save Us
“The Constitution is not neutral. It was designed to take the government off the backs of the people.”—Justice William O. Douglas
The U.S. Supreme Court will not save us.
It doesn’t matter which party gets to pick the replacement to fill Justice Ruth Bader Ginsberg’s seat on the U.S. Supreme Court. The battle that is gearing up right now is yet more distraction and spin to keep us oblivious to the steady encroachment on our rights by the architects of the American Police State.
Americans can no longer rely on the courts to mete out justice.
Although the courts were established to serve as Courts of Justice, what we have been saddled with, instead, are Courts of Order. This is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government interests than with upholding the rights of the people enshrined in the U.S. Constitution.
As a result, the police and other government agents have been generally empowered to probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.
Rarely do the concerns of the populace prevail.
When presented with an opportunity to loosen the government’s noose that keeps getting cinched tighter and tighter around the necks of the American people, what does our current Supreme Court usually do?
It ducks. Prevaricates. Remains silent. Speaks to the narrowest possible concern.
More often than not, it gives the government and its corporate sponsors the benefit of the doubt, which leaves “we the people” hanging by a thread.
Rarely do the justices of the U.S. Supreme Court— preoccupied with their personal politics, cocooned in a world of privilege, partial to those with power, money and influence, and narrowly focused on a shrinking docket (the court accepts on average 80 cases out of 8,000 each year)—venture beyond their rarefied comfort zones.
Every so often, the justices toss a bone to those who fear they have abdicated their allegiance to the Constitution. Too often, however, the Supreme Court tends to march in lockstep with the police state.
In recent years, for example, the Court has ruled that police officers can use lethal force in car chases without fear of lawsuits; police officers can stop cars based only on “anonymous” tips; Secret Service agents are not accountable for their actions, as long as they’re done in the name of “security”; citizens only have a right to remain silent if they assert it; police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside; police can forcibly take your DNA, whether or not you’ve been convicted of a crime; police can stop, search, question and profile citizens and non-citizens alike; police can subject Americans to virtual strip searches, no matter the “offense”; police can break into homes without a warrant, even if it’s the wrong home; and it’s a crime to not identify yourself when a policeman asks your name.
The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases have delivered devastating blows to the lives and rights enshrined in the Constitution. By remaining silent, the Court has affirmed that: legally owning a firearm is enough to justify a no-knock raid by police; the military can arrest and detain American citizens; students can be subjected to random lockdowns and mass searches at school; and police officers who don’t know their actions violate the law aren’t guilty of breaking the law.
You think you’ve got rights? Think again.
All of those freedoms we cherish—the ones enshrined in the Constitution, the ones that affirm our right to free speech and assembly, due process, privacy, bodily integrity, the right to not have police seize our property without a warrant, or search and detain us without probable cause—amount to nothing when the government and its agents are allowed to disregard those prohibitions on government overreach at will.
This is the grim reality of life in the American police state.
In fact, our so-called rights have been reduced to technicalities in the face of the government’s ongoing power grabs.
In the police state being erected around us, the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.
This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death by the very institution that is supposed to be protecting it (and us) from government abuse.
Remember, it was a unanimous Supreme Court which determined that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. That same Court gave police the green light to taser defenseless motorists, strip search non-violent suspects arrested for minor incidents, and break down people’s front doors without evidence that they have done anything wrong.
Make no mistake about it: this is what constitutes “law and order” in the American police state.
These are the hallmarks of the emerging American police state, where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens.
Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching motorists on the side of the road, in a police state such as ours, these instances of abuse are not condemned by the government. Rather, they are continually validated by a judicial system that kowtows to every police demand, no matter how unjust, no matter how in opposition to the Constitution.
The system is rigged.
Because the system is rigged and the U.S. Supreme Court—the so-called “people’s court”—has exchanged its appointed role as a gatekeeper of justice for its new role as maintainer of the status quo, the police state will keep winning and “we the people” will keep losing.
By refusing to accept any of the eight or so qualified immunity cases before it this past term that strove to hold police accountable for official misconduct, the Supreme Court delivered a chilling reminder that in the American police state, ‘we the people’ are at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to ‘serve and protect.”
This is how qualified immunity keeps the police state in power.
Lawyers tend to offer a lot of complicated, convoluted explanations for the doctrine of qualified immunity, which was intended to insulate government officials from frivolous lawsuits, but the real purpose of qualified immunity is to rig the system, ensuring that abusive agents of the government almost always win and the victims of government abuse almost always lose.
How else do you explain a doctrine that requires victims of police violence to prove that their abusers knew their behavior was illegal because it had been deemed so in a nearly identical case at some prior time?
It’s a setup for failure.
A review of critical court rulings over the past several decades, including rulings affirming qualified immunity protections for government agents by the U.S. Supreme Court, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order, protecting the ruling class, and insulating government agents from charges of wrongdoing than with upholding the rights enshrined in the Constitution.
Indeed, as Reuters reports, qualified immunity “has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.”
Worse, as Reuters concluded, “the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police.”
For those in need of a reminder of all the ways in which the Supreme Court has made us sitting ducks at the mercy of the American police state, let me offer the following.
As a result of court rulings in recent years, police can claim qualified immunity for warrantless searches. Police can claim qualified immunity for warrantless arrests based on mere suspicion. Police can claim qualified immunity for using excessive force against protesters. Police can claim qualified immunity for shooting a fleeing suspect in the back. Police can claim qualified immunity for shooting a mentally impaired person. Police officers can use lethal force in car chases without fear of lawsuits. Police can stop, arrest and search citizens without reasonable suspicion or probable cause. Police officers can stop cars based on “anonymous” tips or for “suspicious” behavior such as having a reclined car seat or driving too carefully. Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. Police can use the “fear for my life” rationale as an excuse for shooting unarmed individuals. Police have free reign to use drug-sniffing dogs as “search warrants on leashes.” Not only are police largely protected by qualified immunity, but police dogs are also off the hook for wrongdoing.
Police can subject Americans to strip searches, no matter the “offense.” Police can break into homes without a warrant, even if it’s the wrong home. Police can use knock-and-talk tactics as a means of sidestepping the Fourth Amendment. Police can carry out no-knock raids if they believe announcing themselves would be dangerous. Police can recklessly open fire on anyone that might be “armed.” Police can destroy a home during a SWAT raid, even if the owner gives their consent to enter and search it. Police can suffocate someone, deliberately or inadvertently, in the process of subduing them.
To sum it up, we are dealing with a nationwide epidemic of court-sanctioned police violence carried out with impunity against individuals posing little or no real threat. In this way, the justices of the United States Supreme Court—through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency—have become the architects of the American police state.
So where does that leave us?
For those deluded enough to believe that they’re living the American dream—where the government represents the people, where the people are equal in the eyes of the law, where the courts are arbiters of justice, where the police are keepers of the peace, and where the law is applied equally as a means of protecting the rights of the people—it’s time to wake up.
We no longer have a representative government, a rule of law, or justice.
Liberty has fallen to legalism. Freedom has fallen to fascism.
Justice has become jaded, jaundiced and just plain unjust.
And for too many, the American dream of freedom and opportunity has turned into a living nightmare.
Given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, profit-driven prisons, and corporate corruption, the need for a guardian of the people’s rights has never been greater.
Yet as I make clear in my book Battlefield America: The War on the American People,, neither the president, nor the legislatures, nor the courts will save us from the police state that holds us in its clutches.
So we can waste our strength over the next few weeks and months raging over the makeup of the Supreme Court or we can stand united against the tyrant in our midst.
After all, the president, the legislatures, and the courts are all on the government’s payroll.
They are the police state.