SCOTUS has it out for the little guy

All the excitement over the DOMA decision aside, the Supreme Court has done some pretty frightening things lately.

My colleagues’ columns about the court’s decision to overturn key parts of the Voting Rights Act and weaken Affirmative Action highlight its lack of clarity on issues of race.

As Justice Ruth Bader Ginsburg said in her impassioned dissent to the VRA decision, throwing out legislation that addresses the deeply ingrained racism in our country’s history is akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”

In addition to its misinformed decisions about racial legislation, SCOTUS has also been slowly chipping away at the rights of U.S. citizens, taking away power from the people and giving it to corporations and powerful authorities.

I’ve never been the stereotypical overly-concerned conservative, hollering about government conspiracies to deprive us of our right to heterosexual marriages and military-grade assault weapons. I’m not even conservative in the first place.

But, in light of the mountain of poor SCOTUS choices of late, I can’t escape the cold touch of paranoia about the people in charge.

How did the highest court in the land, intended to preserve the best interests of the American people, become so out of touch with the people they should be protecting?

The American government was founded on the premise of protecting the “little man,” that is, the person or group being oppressed or persecuted by larger groups.

At the time of our country’s birth, America itself was that little man, fighting against the oppressive control of a bigger bully.

Fighting for the rights of the underrepresented is woven into the very fabric of our nation, into our heritage.

And now, more and more, I’m convinced our protective inclinations towards the little guys and the underdogs among us have become lost, or very muddled at best.

Take the recently decided case of Mutual Pharmaceutical Co. v. Bartlett.

Karen Bartlett, a New Hampshire resident, was prescribed a generic version of the drug Clinoril to treat inflammation in her shoulder.

The generic was made by Mutual. Bartlett had a terrible reaction to the generic — two-thirds of her skin nearly peeled off and she was left nearly blind and severely disfigured as a result.

This reaction is called toxic epidermal necrolysis, and when Bartlett took her generic, there was no warning of it on the label.

Under New Hampshire law, Bartlett sued Mutual and won a $21-million settlement under the state’s failure-to-warn and design-defect laws, designed to protect consumers.

Mutual, however, challenged that decision under federal law.

FDA law says generic drugs must exactly match the drug they’re imitating in every way — chemical composition, dosage directions and even labeling and warnings must be precisely the same.

Mutual argued that since it followed federal regulation, it couldn’t be held liable for Bartlett’s injuries.

The court, supporting corporations and firmly stepping on the little guy, agreed.

This decision is now a dangerous precedent in laws relating to generics.

Many medical experts estimate that nearly 80 percent of all drugs prescribed in America are generics, but because of the Mutual v. Bartlett decision, those injured by the generics they are prescribed essentially have nowhere to turn.

Responsibility is absolved from everyone except the patient unlucky enough to take a bad drug.

As Justice Sotomayor said in her dissent (joined by the admirable Ginsburg), “...the Court has left a seriously injured consumer without any remedy.”

Further proving those who look to the Supreme Court for “justice” are, as one online commenter said, “shit outta luck,” SCOTUS also put Fifth Amendment rights (commonly known as the right to remain silent) in serious danger with another recent decision.

In the case of Salinas v. Texas, the Court ruled the silence of a potential defendant during pre-arrest (and pre-Miranda rights reading) interviews can be used against them in court.

The case centered on Genovevo Salinas, who “voluntarily” came in to a Texas police station to talk with police about the recent murder of two brothers — although police had reportedly made it clear he was a suspect in the criminal investigation.

However, a few minutes into the interview, Salinas fell silent and refused to answer further questions. He had not been accused of the crime, arrested or subsequently read his Miranda rights at the time of his silence.

Salinas was later arrested and accused of the murders, and his earlier silence was used against him in court, as a supposed admission of guilt.

He was convicted, with the jury citing this silence as a factor in its conviction.

The Fifth Amendment guarantees no one may be “compelled in any criminal case to witness against himself.”

It doesn’t specifically mention a right to silence, but legal and court precedent have interpreted it as such over the years.

The Miranda warnings read to suspects after arrest clarify these rights, specifying the right to silence so anything they say cannot later be used against them in court — so they don’t inadvertently “witness against” themselves.

SCOTUS ruled Salinas’ pre-arrest silence was perfectly acceptable to use against him in court because he had not “invoked” his right to silence.

According to the 5-4 majority of the Court, Fifth Amendment rights don’t exist unless you specifically invoke them.

This goes against the intrinsic nature of a “right,” something that is naturally present and guaranteed and unalienable, something that shouldn’t need a performative speech act (I hereby invoke my Fifth Amendment right to silence! Silencio! et. al.) to make it
valid.

Many legal experts worry this will lead to more aggressive questioning from police pre-arrest, a purposeful delay in arrests and reading of Miranda rights, and more corresponding false confessions.

The Fifth Amendment was designed to protect citizens and suspects — the little men of the justice system — from manipulative interrogation and intimidation just like this.

The only thing this ruling can possibly lead to is more wrongful convictions.

When will the Supreme Court learn the laws protecting us little men are here for a reason?

Persecution, subjugation and intimidation are, sadly, truths of humanity. They’ll always be around.

But that doesn’t mean we should just lie back and take their abuse.

In a time when the U.S. prides itself as being above the totalitarian, oligarchical countries of the world, we’re idiotically invalidating laws designed to prevent us from descending into a totalitarian oligarchy.

I would advise the Supreme Court to take notice of the “little guys” who make up America.

You can only take away so many liberties from a population before it begins to take notice and take action.

After all, that’s how this country was founded.

­— kelfritz@indiana.edu