Posted by Dale Marlowe on November 05, 2004 · 5 mins read

Presidential opinions about abortion, the place of religious expression in the public sphere, free expression, the right to bear arms, the rights of the accused, etc.,††are usually†interesting but essentially meaningless: the most important issues of our day are constitutional issues, not policy issues. Presidents can do little or nothing about them, because the controversies around the issues are determined largely by two factors√“the collective inertia of†Supreme Court decisions on a topic, and the attitudes of the Justices who finally hear them.†

But Tuesday's election is important, because Bush may well build a new Supreme Court, in his own image, and who he picks will have serious ramifications.†

Rehnquist will likely soon be dead of thyroid cancer and Sandra Day OíConnor may at last decide sheís had enough of being the lone nearly-sane person in the booby hatch. Their pal John Paul Stevens will nigh turn 218 years oldâ he was, get this: twenty-five at the end of World War II. Ruth Bader Ginsburg, also in declining health after a bout with cancer, will likely join her cohorts in what may become a four-person exodus from the Supreme Court. Alas, the poor woman has lost her colon.†

Abortionistas, Gunlovers, Curse-Fiends and Bleeding Hearts have nothing to fear, I donít think: to overturn Roe would be akin to dismantling the very concept of precedent as a guiding principle; the real danger√“or opportunity, depending upon your perspective√“is that, after nearly fifty years of relying in large part upon the Court to Do What Had To Be Done (because the Congress†avoided tough decisions), the branch of government intended by the Framers to be least powerful has indeed become Supreme.†By not holding the Congress accountable for its spinelessness, and by not demanding change through elected officials, and allowing them to abdicate their responsibilities to the un-unelectable, America seems to have given itself over to a rule by the Court Ö which†worked†so long as the Nine Platonic Vessels of The Sacred Effluvium (so called†deliciously by inferior Judge Learned Hand) were squarely up-with-people.†

Inevitably, in 2000, two bellyaching baby-boomers, whoíd seen the Court rightly desegregate schools, grant rights to privacy, de-Christianize the public sphere, install and protect diversity initiatives, and generally nudge the culture toward progressive, tolerant values, turned to the Court to resolve an essentially political question. Many of us were uncomfortable with the result. But it was too late; because Americans had been deferring to the Court so long, most accepted as legitimate that it could choose our leader.†

Now that leader, affirmed and emboldened, will nominate††four new Justices. True, those jurists will have to run a gauntlet of old-guard Senate Liberals to be confirmed. But I'm afraid we can no longer trust that generation to see a threat until it is behind them. Ted Kennedy, for example, will look backward for his objections,†to the bevy of†baby-boomer†untouchables,†seeking to protect abortion, gay rights, and other cultural bugbears. Bush nominees will give lip service to upholding the great liberal decisions of the twentieth century, and because of precedental shackles, they likely will. Yet to satisfy Bush's base, any nominee will likely come from the Bork-Scalia-Thomas-Federalist Society orbit. In a Court overempowered, with six Thomas-caliber Justices seated, we have far greater concerns than whether the Court will preserve Roe.†

Itís not a Dem/Lib or Repub/Con thing. It's far beyond that. Bush's nominees may decide the development of American understandings of individual liberty, the limits of government intervention in personal affairs, and the nature of Americaís relationship to those who are, by definition, its weakest members: those who, for whatever reason, justly or unjustly, are caught in the gears of the criminal justice system.††

The massive Tolkien-scale legal battles of this century will be fought†against a virulent and punitive form of thought that has metastisized beyond traditional labels. It†distracts the electorate with a false choice between security and liberty, while allowing various cynical interests to use the screen as cover to clamber back where such interests feel they rightly belong√“astride the backs of people. The heads who hold such thoughts will be looking to stack the Court with kindred. The decisions made by such a court will shock the conscience.†Bush's ideology will control American jurisprudence for half a century or more. This time, at least, the threat of a Supreme Court gone haywire is legit.


sepoy | November 05, 2004

What about the chances of Sandra Day deciding to stick around until 2006? Give the Dems a chance to make that the Supreme Court election? Rehnquist is gone, sure. And his replacement could be Ted Olson (other possibilities are mentioned here). Just Rehnquist leaving aint that big a deal. Of course, it moves Scalia to become Chief Justice, no? And he nuts. I am sorry, Supreme Nuts. A petition for Sandra and Paul to hang on in there....2 more years.

Marlowe | November 05, 2004

O'Connor understands her position, but I think she's tired. She probably wants to get back to Stanford ASAP; the problem with Scalia is that he's something of a force of nature. He's like pure evil--you recognize it, but it's seductive in its brilliance and probably necessary for balance in the universe. I adore his writing and reasoning, though I usually loathe where they leave me. JP Stevens is just getting too old, though. Seriously. He remembers when "The Milton Berle Hour" was a new show.

Tamanna | November 06, 2004

The fact that Justice Stevens is approaching 90 is quite troublesome. Though he may want to hold on for a democratic pres, he may not be able to. Last year, Justice O'Connor visited and from her comments, as moderate (well for the conservatives on the court) as she may be, she will definitely step down only during a Republican administration. Interestingly enough, Bush may well appoint Thomas or O'Connor as the new CJ, thus being able to claim the appointment of the first black or woman CJ, respectively. Majority of the court are cancer survivors, so Rehnquist may just hold out.