[Paleopsych] NYT Op-Ed: Imagining America if George Bush Chose the Supreme Court
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Tue Oct 19 16:59:57 UTC 2004
Imagining America if George Bush Chose the Supreme Court
New York Times Op-Ed, 4.10.18
By ADAM COHEN
[This is an unusually stupid opinion piece, if only because Supreme Court
justices have to be confirmed by the entire Senate, not the most
"right-wing" subset of Republicans. In order to get his nominations
through, Bush has generally proposed "moderates." This kind of fear
mongering used to be a monopoly of Republicans, but now the Democrats have
caught up, just as the Republicans have caught up with the Democrats in
looting the public fisc. Democratic looting has been around so long
it is part of the general background noise. This means the new, innovative
looting by Republicans looks alarming.
[Choice quotations from Mr. Mencken are badly needed at this hour.]
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
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
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
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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