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Bush Supreme Court: Clarence and Antonin x 3


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The Editorial Observer, whatever that is, today writes in the New York Times about what the likely scenario would be if Bush gets several new appointments to the Supreme Court. It's frightening, really.

 

 

 

EDITORIAL OBSERVER

Imagining America if George Bush Chose the Supreme Court

By ADAM COHEN

 

Published: October 18, 2004

 

 

Abortion might be a crime in most states. Gay people could be thrown in prison for having sex in their homes. States might be free to become mini-theocracies, endorsing Christianity and using tax money to help spread the gospel. The Constitution might no longer protect inmates from being brutalized by prison guards. Family and medical leave and environmental protections could disappear.

 

It hardly sounds like a winning platform, and of course President Bush isn't openly espousing these positions. But he did say in his last campaign that his favorite Supreme Court justices were Antonin Scalia and Clarence Thomas, and the nominations he has made to the lower courts bear that out. Justices Scalia and Thomas are often called "conservative," but that does not begin to capture their philosophies. Both vehemently reject many of the core tenets of modern constitutional law.

 

For years, Justices Scalia and Thomas have been lobbing their judicial Molotov cocktails from the sidelines, while the court proceeded on its moderate-conservative path. But given the ages and inclinations of the current justices, it is quite possible that if Mr. Bush is re-elected, he will get three appointments, enough to forge a new majority that would turn the extreme Scalia-Thomas worldview into the law of the land.

 

There is every reason to believe Roe v. Wade would quickly be overturned. Mr. Bush ducked a question about his views on Roe in the third debate. But he sent his base a coded message in the second debate, with an odd reference to the Dred Scott case. Dred Scott, an 1857 decision upholding slavery, is rarely mentioned today, except in right-wing legal circles, where it is often likened to Roe. (Anti-abortion theorists say that the court refused to see blacks as human in Dred Scott and that the same thing happened to fetuses in Roe.) For more than a decade, Justices Scalia and Thomas have urged their colleagues to reverse Roe and "get out of this area, where we have no right to be."

 

If Roe is lost, the Center for Reproductive Rights warns, there's a good chance that 30 states, home to more than 70 million women, will outlaw abortions within a year; some states may take only weeks. Criminalization will sweep well beyond the Bible Belt: Ohio could be among the first to drive young women to back-alley abortions and prosecute doctors.

 

If Justices Scalia and Thomas become the Constitution's final arbiters, the rights of racial minorities, gay people and the poor will be rolled back considerably. Both men dissented from the Supreme Court's narrow ruling upholding the University of Michigan's affirmative-action program, and appear eager to dismantle a wide array of diversity programs. When the court struck down Texas' "Homosexual Conduct" law last year, holding that the police violated John Lawrence's right to liberty when they raided his home and arrested him for having sex there, Justices Scalia and Thomas sided with the police.

 

They were just as indifferent to the plight of "M.L.B.," a poor mother of two from Mississippi. When her parental rights were terminated, she wanted to appeal, but Mississippi would not let her because she could not afford a court fee of $2,352.36. The Supreme Court held that she had a constitutional right to appeal. But Justices Scalia and Thomas dissented, arguing that if M.L.B. didn't have the money, her children would have to be put up for adoption.

 

That sort of cruelty is a theme running through many Scalia-Thomas opinions. A Louisiana inmate sued after he was shackled and then punched and kicked by two prison guards while a supervisor looked on. The court ruled that the beating, which left the inmate with a swollen face, loosened teeth and a cracked dental plate, violated the prohibition of cruel and unusual punishment. But Justices Scalia and Thomas insisted that the Eighth Amendment was not violated by the "insignificant" harm the inmate suffered.

 

This year, the court heard the case of a man with a court appearance in rural Tennessee who was forced to either crawl out of his wheelchair and up to the second floor or be carried up by court officers he worried would drop him. The man crawled up once, but when he refused to do it again, he was arrested. The court ruled that Tennessee violated the Americans With Disabilities Act by not providing an accessible courtroom, but Justices Scalia and Thomas said it didn't have to.

 

A Scalia-Thomas court would dismantle the wall between church and state. Justice Thomas gave an indication of just how much in his opinion in a case upholding Ohio's school voucher program. He suggested, despite many Supreme Court rulings to the contrary, that the First Amendment prohibition on establishing a religion may not apply to the states. If it doesn't, the states could adopt particular religions, and use tax money to proselytize for them. Justices Scalia and Thomas have also argued against basic rights of criminal suspects, like the Miranda warning about the right to remain silent.

 

President Bush claims to want judges who will apply law, not make it. But Justices Scalia and Thomas are judicial activists, eager to use the fast-expanding federalism doctrine to strike down laws that protect people's rights. Last year, they dissented from a decision upholding the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. They said Congress did not have that power. They have expressed a desire to strike down air pollution and campaign finance laws for similar reasons.

 

Neither President Bush nor John Kerry has said much about Supreme Court nominations, wary of any issue whose impact on undecided voters cannot be readily predicted. But voters have to think about the Supreme Court. If President Bush gets the chance to name three young justices who share the views of Justices Scalia and Thomas, it could fundamentally change America for decades

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I do think that the Supreme Court appointments should be a major issue this election but I haven't heard alot about it. In 2000 it was a much bigger issue. Historically many times a President falls short of his intent when nominating someone because he has no control over how the Justice votes after being appointed. The majority of the present court was appointed by Republicans and it has been a fairly moderate court on many issues. So even if Bush wins re-election it is no guarantee that Conservatives will take over the Court.

 

I often think about a comment President Eisenhower made when asked if he had ever made a mistake. He answered Yes, and that most of them sat on the Supreme Court.

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Guest zipperzone

I read the article too and it scared the shit out of me - and I don't even live in the USA.

 

I had in a previous post outlined my fears of what could happen if Bush was able to make 3 more appointments to the Supreme Court.

 

My comments were poo pooed by many.

 

Wait and see - time will tell, and my prediction is that it won't be pleasant.

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Guest zipperzone

>And the latest is that Scalia has disclosed that Thomas

>doesn't believe in stare decisis! The legally minded here

>will know how mind-bogglingly un-conservative THAT is!

 

And for the unlegally minded among us - perhaps you would care to elaborate?

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>>And the latest is that Scalia has disclosed that Thomas

>>doesn't believe in stare decisis! The legally minded here

>>will know how mind-bogglingly un-conservative THAT is!

>

>And for the unlegally minded among us - perhaps you would care

>to elaborate?

 

 

 

stare decisis >>> "stand by that which is decided"

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>>And the latest is that Scalia has disclosed that Thomas

>>doesn't believe in stare decisis! The legally minded here

>>will know how mind-bogglingly un-conservative THAT is!

 

 

If admitting earlier mistakes is a conservative sin, sign me up for the John Birch Society. Thomas says he admires the one dissenting justice in the Plessy v. Ferguson "separate but equal" decision. He probably doesn't feel the same way about the dissenting justices who opposed criminalization of gay sex, several decades ago, but the justices who made it legal last year didn't believe in stare decisis either.

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Stare decisis means something like "the thing is decided." It's the legal principle that judicial decisions create precedents, and that courts hearing subsequent cases with similar fact situations have to follow the earlier precedents, particularly if they are the decisions of higher courts. It also means that precedents are rarely overturned in order to assure stability and predictability in the legal system.

 

Some countries have tried strict stare decisis, meaning precedents NEVER can be overturned, but have discovered that is stultifying, because then you're stuck with bad decisions forever, nor can the law change even though time and circumstances have. The U.S. doesn't adhere to strict stare decisis, but even so, reversals of previous decisions are rare and noteworthy. Otherwise, the legal system would become unpredictable. The recent Supreme Court decision in the Texas sodomy law case, overturning (and in fact repudiating as mistaken) its earlier decision in a similar case from Georgia, was a stunning example of the Court departing from stare decisis.

 

Without stare decisis, every case has to be treated as if it were an entirely new situation, even though there have already been thousands of such cases in the past. You end up with the same set of facts yielding totally different results, and no way of predicting or knowing how the law will be applied in a particular fact situation. It turns the judicial system into a crap shoot. That's a recipe for chaos, because it clogs the courts (there's little incentive not to file suit, or to settle, because, hey, there's always a chance you could win!) and there's never any certainty about what the law is.

 

Hope this sheds some light. . .

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