Tuesday, September 13, 2005

Unbalanced

September 13, 2005

I’m sure most of you already know that William Rehnquist, Chief Justice of the Supreme Court, has finally succumbed to thyroid cancer. During his 19 years as its head, Rehnquist led the court steadily to the right as part of its staunch conservative wing. Rehnquist joined with the conservatives and two swing-voting Justices in allowing publicly-funded school vouchers to be used at religious schools, for instance, but some parts of his agenda, such as attempts to outlaw abortion once again, met with little success.

From the time of his appointment to the court by Nixon in 1971, Rehnquist felt his duty to be twofold. First, he sought to correct what he perceived to be the liberal excesses of the preceding Warren court of the 60s. To this end, Rehnquist argued strongly against the “judicial activism” so harped upon by the right wing today, contending that the purpose of the Supreme Court was not to make law but to interpret it. Second, Rehnquist felt that a return to many of the constitutional restrictions from which Congress had largely freed itself was imperative, and to this end he legislated from the bench regularly.

In spite of his reputation as a conservative, Rehnquist was the more moderate member of the Court’s conservative wing. Justices Clarence Thomas and Antonin Scalia round out the trio of reliably conservative judges, and their ideology is fundamentally different. While Rehnquist believes that the Constitution is a living document which must change to meet the needs of an evolving society, both Scalia and Thomas are “originalists” who believe that the Constitution should be interpreted in precisely the way in which the framers intended it.

Thomas has even argued that the establishment clause of the First Amendment, which sets forth the separation between church and state, means exactly what it says and no more: only “Congress shall make no law respecting an establishment of religion.” If the people of a state wish to put up a crucifix in its legislative chambers or mandate prayer to Allah in their schools, that is perfectly in line with Constitutional standards.

Justice Anthony Kennedy and soon-to-be-former Justice Sandra Day O’Connor were the Court’s swing voters, often conservative-leaning but never inflexible. Though O’Connor argued against Roe v. Wade in the beginning of her career, she later contended that because women had come to rely on their right to an abortion, it would be imprudent to overturn the landmark precedent. Kennedy, too, has written in favor of the right to choose, although he did join the Conservative Three in banning partial birth abortion.

Breyer, Ginsburg, Souter, and Stevens constitute the liberal Justices, but it is important to remember that “liberal,” judicially speaking, is very different from the common use of the term. Many of the governmental standards we take for granted today are remarkably liberal by legal standards. The necessity of informing a person of his or her rights upon arrest, for instance, is an artifact of the Warren court and was fiercely attacked by Scalia and Thomas in the 2000 case Dickerson v. United States. These four Justices often take legally liberal opinions that are usually perceived by the general populace as socially moderate, and they are not nearly so inseparable a cadre as the conservative bloc.

We all know that the Neo-Conservatives pulling the President’s strings would like to accelerate the slow drift to the right initiated by Rehnquist’s appointment, and the death of the Chief Justice coupled with the retirement of moderate O’Connor provides a fantastic tactical opportunity to do just that. To this end, Bush has nominated John Roberts, a man with barely two years’ experience as a judge, to replace Rehnquist as Chief Justice. This seems absurd.

Don’t get me wrong, I’m trying very hard not to pre-judge the man. His appointment by Bush alone is enough to set off the alarms in my we’re-screwed-o-meter, but that thing’s been screaming pretty much nonstop since last November anyway. Bush made his intention to appoint a Justice in the mold of Scalia or Thomas a campaign promise, and something tells me this is one of the few times we can expect a politician to deliver.

The Neo-Cons simply have the rest of the nation by the dangly bits when it comes to the Supreme Court and all we can hope to do is mitigate the damage, so the question now is exactly how bad is Roberts? I’m not ready to make a call concerning the man’s jurisprudence until I see him at the confirmation hearings, but one thing is for sure: we can all say goodbye to a well-balanced Court.

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