Imagining America if George Bush Chose the Supreme Court
 

By ADAM COHEN
NY Times
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.

I wish i have time to read all that :1orglaugh

you know kerry's up shit's creek when the NY Times starts in with groundless scare tactics.
It's one thing for liberal scum like kerry to lie about a draft, lie about social security, but when the lies are printed in the "news" papers, you know kerry's about to go down.:1orglaugh

If you don't think Bush will appoint conservative judges you're stupid.

Oh wait it's 12clicks.

Oh, the horror of it all ... :1orglaugh

Reagan had 8 years to pack The Court with "conservative" justices. Most have turned out to be quite moderate.

Plus, all justices must be confirmed by Congress. It's not likely that many extremists get through on either side - as we saw with Robert Bork.

here in America, we understand the huge difference between conservative justices and the scare tactics used against them that german douch bags fall prey to. :thumbsup

13clicks away to nov 2nd

Both the liberal scum and the republican scum lie pretty much continuously. http://www.factcheck.org

If you actually believe either of both candidates right now is strongly ahead, you are deluded. However, I believe there are bookies taking bets on the elections right now, so if you're sure about who's going to win, why not put in all your savings to make an easy buck?

i guess this is some sort of argument.:1orglaugh

:( :( :(

No, it isn't. I only use arguments with those who are open to logic. You, on the other hand, probably would only start believing Kerry had a fair chance of winning the elections a year after he'd actually won.

People who ignore reality because of their ideologies are funny. :glugglug

That's nice. I'm not German though, so wtf u on about.

did I hear 12clicks says 'liberals'?

:Graucho

Sweet Jesus, 12clicks you're like a holocaust denier, anything that makes what you believe in seem in any way wrong is a lie. lol, point out one of the court decisions mentioned in that article that is inaccurate. I can't wait. Of course you've never so much as heard of any one of them since they're not repeated on Fox day in day out.

And what do you think about Bush being endorsed by Iran? You were so happy when Russia endorsed him; I suppose you'll feel the same way about Iran. I can't wait to hear you spin or deny the fact that they are afraid of democrats and supportive of the republicans. You'll like a child standing up for his mommy. Some day you have to grow up and realize mommy is a loser who isn't protecting you and has bankrupted your college fund.

ahahahahaha, no, no. its all true and we're all fucked.
:1orglaugh
life's gotta suck when they've convinced you to fear your shadow.:1orglaugh

12clicks. I gotta respect your consistency, bro. RESPECT!

On a serious note, the article below assumes too much.

Fact 1: Many of the liberal judges on the Court were REPUBLICAN appointees

Stevens -- Nixon
Souter -- Bush 41
Warren (aka der UberLiberal) -- Eisenhower


Fact 2: even liberal appointees can be quite conservative on a core line of issues-- see Breyer on crime/defendants' rights

Fact 3: It is very hard to pass a hardcore ideologue through the Senate Judiciary committee (even if you get out of committee you might get wacked by a filibuster threat)

Fact 4: O'Connor/Kennedy are centrist because of respect for PRECEDENT. As much as many conservatives may want to re-bottle the liberal genie back into the bottle, its much easier to limit and redefine it than overturn it outright (See the CASEY decision)

Fact 5: Much of the action people should be paying attention to should be on the TENTH amendment. (see the Lopez case ie., federal antiguns in schools law struck down due to inapplicability of the Commerce Clause)

Good point, Iran didn't endorsed Bush, let's just ignore that. Wait until Russia does again so you can start another thread about that. lol, your whole being is so pathetic I feel bad cutting you down, but it's so easy. You're a sad man Ron, grow a backbone and start using using your brain instead of your remote.

Post more smilie faces and hope some people don't realize what a hypocritical moron you are.

If I have to dumb down all thats going on in the world for you, I'd be here all day. I choose to laugh at you instead.
please continue to cut me down.:1orglaugh
as if anyone is paying attention to you.:1orglaugh

:1orglaugh :1orglaugh

no, you're too smart for me! You think Iran really wants Bush.:1orglaugh

Yes, they do.

Do you really think you speak for Iran more than the head of their security council? Or does Bill O'Reilly? People who don't watch Fox understand who's going to go after the real enemies, and his name isn't George Bush.

http://www.japantoday.com/e/?content...at=8&id=316095

I realize you don't have the capacity to read an entire news article, so I'll give try to give you the "ticker" points.

Keep posting smilie faces and the truth will go away.