What One More “Fundamentalist” US Supreme Court Justice Will Do to Constitutional Law in our Country

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Mon Feb-18-08 10:30 PM
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What One More “Fundamentalist” US Supreme Court Justice Will Do to Constitutional Law in our Country

I am not very enthusiastic about either of the two remaining Democratic presidential contenders, as I believe they are both too conservative for what our country needs today. Nevertheless I find abundant reasons to vote for either of them in the general election against John McCain (or any other Republican candidate). I have described some of my reasons here. But perhaps the most important reason is the long standing damage to our Supreme Court (and therefore our country) that will result from a single additional “fundamentalist” justice added to the current block of four.

John McCain has gone to great lengths in recent months to assure the conservative base of the Republican Party that he is one of them. If he is elected president there will be no better way to drive home that point than to appoint another radical authoritarian conservative justice to the Supreme Court.

The current radical conservative block, consisting of Thomas, Scalia, Roberts and Alito, are only 59, 72, 54, and 58 years old, respectively. One more young addition to that block could result in a solid majority for the radical authoritarian conservatives, lasting a couple of decades, and perhaps much longer if they get two additions instead of one. John Paul Stevens, a moderate Republican, is 87 years old, and some question the health of 75 year old Ruth Bader Ginsberg. Who knows what another 4-8 years of Republican rule will bring?

The current radical conservative USSC block is worse than “fundamentalist” or “strict constructionist”

There are many who refer to the current radical conservative block on the USSC as “fundamentalist” or “strict constructionist”. That gives them credit that they don’t deserve. The term “fundamentalist” or “strict constructionist” implies a judicial philosophy, which none of them appear to have.

Consider, for example, their insistence that the right of corporations to donate unlimited amounts of money to political campaigns is protected by the free speech clause of our First Amendment. That is quite a stretch for so-called “strict constructionists”. Or consider their insistence that it is unconstitutional for Congress to create regulatory agencies, even though our Constitution clearly gave Congress the right to enact laws. Or consider the ridiculous “unitary executive” theory that many of them have recently promulgated, paving the way for executive tyranny. Nowhere does our Constitution give such powers to our president.

No, these people have no judicial philosophy. Rather, they act primarily as enablers of the extreme conservative wing of the Republican Party. Their only “philosophy” is to make whatever rulings are necessary to protect wealthy and powerful corporations and individuals at the expense of the American people, or to pander to the religious right. Constitutional lawyer Cass Sunstein explains:

Mr Sunstein shows that fundamentalists have been wildly inconsistent in applying constitutional history, referring to it only when it fits their policy goals. Too often, he says, their interpretation neatly fits only the agenda of the extreme edges of the Republican Party's right wing rather than any reasonable view of history.

And John Dean, in “Broken Government – How Republican Rule Destroyed the Legislative, Executive and Judicial Branches”, explains how Republican Presidents have used these hypocritical judges to advance their agenda:

Corrupting the independence and impartiality of the federal judiciary has been a priority of Republican presidents, who have devoted four decades to selecting primarily judges and justices with a radical conservative political philosophy. As a result these Republican-appointed jurists, who now constitute the prevailing majority, are no more objective and open-minded on countless issues that regularly come before the federal courts than the Republican National Committee.

Specific areas of Constitutional law likely to be overturned by the addition of one more “fundamentalist” justice to the USSC

John Dean, after consulting with other experts on Constitutional law, discusses the following areas of Constitutional law that are likely to be overturned by any further enlargement of the block of radical conservative justices to our USSC. Let’s consider some of these, along with what the current block of radical conservatives has to say about some of them:

The right of women to choose an abortion
Dean says that Roe v. Wade would either be overturned or so limited as to be meaningless. Here is what some of the four have had to say on the subject:

Scalia, speaking to academics at the University of Freiburg in Switzerland in 2006, said that he hopes Roe v. Wade will be overturned.

Thomas and Scalia dissent in Planned Parenthood v. Casey: “We believe that Roe was wrongly decided, and that it can and should be overruled”.

While working as a Justice Department lawyer in 1985, Alito wrote in a memo that the government "should make clear that we disagree with Roe v. Wade".

In 1990, as the principal deputy solicitor general in President George H.W. Bush's administration, Roberts wrote a legal brief for the Supreme Court in a case regarding federal funding for abortion providers. "We continue to believe that Roe v. Wade was wrongly decided and should be overruled," Roberts wrote. His brief added: "The Supreme Court's conclusion in Roe that there is a fundamental right to an abortion finds no support in the text, structure or history of the Constitution."

Affirmative action
Dean notes that “fundamentalists” are universally hostile to affirmative action, calling it “reverse discrimination”. He says that once they have a majority affirmative action laws will become extinct.

Scalia stated that he would never allow affirmative action under any circumstances, in his concurrences in both the Adarand and Croson cases.

Thomas called affirmative action "noxious" and labeled it "government-sponsored racial discrimination.

A report by the NAACP had this to say about Alito’s stand on affirmative action:

The overwhelming majority of African-American litigants whose claims judge Alito has adjudicated has lost his vote. We can predict with substantial certainty that Judge Alito will very likely vote in a manner that… will cause a substantial shift in the Court’s civil rights jurisprudence with devastating effects.

John Roberts criticized state efforts to battle sex discrimination, calling programs promoting affirmative action and comparable worth "highly objectionable" in his legal advice to President Reagan.

Liberties contained in our Bill of Rights
At one time in our history there was debate on whether or not our Bill of Rights provided protection only against the federal government, or also against state and local government. However, beginning in 1897 the USSC began making rulings that made it more and more clear that our Bill of Rights protects our liberties against not only the federal government, but state and local government as well – so that today that principle is solidly ingrained in Constitutional law.

But, as Martin Garbus explains in “The Next 25 Years” (page 68), “Thomas, Scalia, Roberts, and Alito are dead set against the application of many of the Bill of Rights amendments against the states”.

Consequently, the addition of one more “fundamentalist” to the USSC could very well mean that any state could pass laws abrogating many of the liberties we have taken for granted for over a century – for example, they could enact a law abrogating freedom of speech, or creating a state religion.

Civil Rights
Cass Sunstein notes in his book, “Radicals in Robes” (page 63), that fundamentalists believe that nothing in our Constitution prohibits the federal government from discriminating on the basis of race or sex.

An editorial in the Washington Post noted that Alito’s “most important civil rights decisions collectively show an inclination to protect businesses from marginal civil rights claims and to make it more difficult for those who say they were discriminated against to win redress in the courts.”

Another Washington Post article noted that Roberts was “part of the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration's effort to curtail the use of courts to remedy racial and sexual discrimination.”

Gay rights
Perhaps the best indication of the “fundamentalist” view towards gay rights is provided in the Lawrence v. Texas decision, in which the USSC overturned a Texas sodomy law that enabled the state to prosecute homosexuals for having consensual sex in the privacy of their own home. A minority dissent by Scalia, joined by Thomas, stated:

Most Americans do not want persons who are openly engaged in homosexual conduct as partners in their businesses, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Environmental protection
Dean notes that “fundamentalists” believe that there is no constitutional basis for environmental protection by the federal government. They believe that government regulation of business in the name of environmental protection is akin to confiscating properties from the affected businesses.

People for the American Way sum up the views of Thomas and Scalia on this issue:

Justices Scalia and Thomas have already used their positions as part of narrow majorities on the Court to do very significant damage to federal, state and local efforts to protect the environment. They have also helped lead majority opinions that have undermined the ability of citizen groups to bring lawsuits in their efforts to enforce environmental protections.

Habeas Corpus
To quote Reddhedd on the tremendous importance of habeas corpus to our democracy, posting at Firedoglake:

A right to challenge being held by the government for improper reasons is at the heart of our democracy – where such right was established to secure our rights to liberty and freedom, and to stop imprisonment of opposition candidates for political reasons. The right of habeas corpus is our firewall against the tyranny of the majority – it dates back to the Magna Carta, which bound the king to the rule of law. To threaten habeas corpus protections tears at the very fabric of rights in this nation.

In Hamdi v. Rumsfeld, the USSC ruled in favor of habeas corpus, saying that “We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.”

Cass Sunstein explains the dissent of the Court’s “fundamentalists” on this ruling (page 197):

The federal habeas corpus statute does not apply, and the President can detain people free from judicial oversight. Thus Justice Scalia rejects the court’s decision that some kind of hearing is necessary to support detention. “For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort”. Justice Thomas joined Scalia on this point; and as we have seen, Justice Thomas also favors a broad rule that would permit the president to detain enemy combatants, even those who are American citizens, indefinitely.

Religion
“Fundamentalists” believe that there is nothing in the Constitution that mandates the separation of church and state. With respect to the part that states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, they take that very literally – to them, it has nothing to do with the separation of church and state. Therefore, according to John Dean, if they become the majority we can expect to see school prayer in the classroom and in many other public places, and we can expect federal funding of religious organization to become the norm.

Voting rights
The “fundamentalist” judges on the current court have been consistently hostile to voting rights for the American people. They have no interest in the concept of one-person-one-vote, and they have consistently shown contempt for the landmark Voting Rights Act of 1965, which went a long way towards ensuring that minorities are enabled to vote. According to People for the American Way:

In 1994, Justices Thomas and Scalia advocated a radically activist position in a concurring opinion that, had it been the majority opinion, would have done great damage to the nation's progress toward ensuring all Americans an equal opportunity to participate and be heard in our democratic system. Not only would Thomas' and Scalia's position in Holder sharply diminish the protections provided by the Voting Rights Act of 1965, it would also overturn 30 years of Supreme Court precedent and at least three congressional reauthorizations of the Act.

The worst and most corrupt USSC decision in US history

The Supreme Court that stopped the counting of Florida ballots in December 2000, thereby handing the presidency to George W. Bush, contained three “fundamentalist” justices. How they got two other conservative justices on the Court to go along with them is something we’ll probably never know. But the decision in Bush v. Gore deserves strong consideration for the worst and most corrupt USSC decision ever made.

They used the Equal Protection clause of the 14th Amendment to rule the Florida Supreme Court’s order to continue counting the votes unconstitutional, based on different standards for counting ballots in different counties. By that reasoning, the whole election, in all 50 states would have to be ruled unconstitutional, since there were myriad different voting methods in all states. Furthermore, given the differences in methods and the quality of voting machines in Florida, and that the purpose of hand counting the ballots was to remedy the unfairness that resulted from this, how could anyone with half a brain come to the conclusion that hand counting the ballots provided less equal protection than accepting the machine counts without further investigation? This in itself is proof that the five Supreme Court Justices who came up with this ruling did so only because of their own personal preference.

Then there is that fact that the Justices took it upon themselves to decide what the deadline date for counting the ballots would be. There was no reason that they couldn't have allowed it to go at least until the 18th of December, as provided for in our Constitution. But that could have provided time for the counting to be completed, which was why the scumbuckets chose not to go that route.

Then, to pile hypocrisy upon hypocrisy, they said that they wanted to make it clear that this decision of theirs applied only to this one very specific case and should not be taken to set a precedent. No wonder they said that. The three “fundamentalists” on the court who drove this decision had previously shown nothing but contempt for the Equal Protection Clause, whenever it was used to prevent disenfranchisement of minority voters, which was its main purpose.

I think that Vincent Bugliosi, in “None Dare Call it Treason”, hit the nail on the head with respect to the infamous Bush v. Gore decision:

That an election for an American President can be stolen by the highest court in the land under the deliberate pretext of an inapplicable constitutional provision has got to be one of the most frightening and dangerous events ever to have occurred in this country. Until this act – which is treasonous, though again not technically, in its sweeping implications – is somehow rectified (and I do not know how this can be done), can we be serene about continuing to place the adjective "great" before the name of this country?

Final thoughts

What we’re dealing with now is the culmination of several decades of efforts by radical conservative Republican presidents (Nixon, Reagan, Bush, and Bush) to pack the Supreme Court (and the rest of the federal judiciary) with partisan political hacks with no judicial philosophy and no respect for their office or our country. That’s what gave us George W. Bush. And that’s what very well may result in a radical and regressive transformation of our Constitutional law in the next 4-8 years if a Republican is elected president in 2008.

I believe that Hillary Clinton and Barack Obama are substantially more conservative than what our country needs at this time. But they will NOT pick a Supreme Court nominee who will put the final nail in the coffin of our Constitutional law as we know it.

Imagine going back to the days when women were forced, through lack of an acceptable alternative, to getting dangerous back alley abortions. Imagine an America without a Bill of Rights to protect our liberties against infringement by state governments. Imagine an America where environmental protection is unconstitutional, where affirmative action is unconstitutional, where laws that proclaim consensual homosexual acts a felony are constitutional, where there is no separation between church and state, where the Constitutional principle of one-person-one-vote is just a quaint memory, and where the so-called unitary executive rules over our country as our dictator.

Anyone who is concerned about those things should be very worried about the possibility of having a Republican president for the next 4-8 years.