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Check, but not Checkmate.

Friday, June 29, 2007
The Supreme Court decisions of the last few days have revealed the new contours of the nation's highest judicial body: 2 open reactionaries (Scalia & Thomas), 2 thinly concealed reactionaries (Alito & Roberts), 4 moderates (Breyer, Ginsburg, Souter, Stevens), and 1 easily manipulated waffler (Kennedy). We can expect for the forseeable future many more 5-4 decisions that substantively overturn major court cases while theoretically preserving them. Scalia & Thomas will call for a forthright overturning of precedent, Alito & Roberts will perform verbal gymnastics in order to cover up their identical positions, and Kennedy will get bullied into going along by the court's conservative majority. For the next decade at least, there is no liberal law or egalitarian judicial decision which is safe from the runaway Supreme Court.

At first glance it would appear that there is very little that can be done. The decisive battles were fought in the 2004 election and the 2005 confirmation battles, and we lost both of them. No matter what kind of political majorities Democrats are able to build in the next dozen years, no matter what sort of policies we manage to enact to reverse the disastrous course of the last seven (or twenty-seven) years, the right-wing Court will be there to stop us. It is the Supreme Court, not Iraq, that is George Bush's ultimate legacy.

I am not quite ready prepared to concede the match, however. The Court is a body of awesome power, but it is vulnerable to external pressure. The Supreme Court's power resides neither in the purse nor the sword, but only the law - something that Bush and his henchman have demonstrated is a very weak power indeed.

As I see it we have 2 basic strategies open to us. The first could best be described as a war of attrition. It is the accept the composition of the Court, working to mitigate its damage through legislative enactment when we can, and allowing the passage of time to remove the 70-year old Scalia & Kennedy from the bench. There is some promise in this approach. While civil liberties questions are outside of Congressional power to overrule the Court, it would be possible (but radical) to get around the Roberts Court on economic issues by amending the laws of incorporation. Corporations are products of positive legislation, without explicit protection by the constitution. "All" we would have to do is amend the laws to state that corporations do not have the legal status of persons.

But strategy #1 carries enormous risks. Democrats might not hold the Presidency when new retirements take place. The Court might extend its reach over economic regulation by striking down the amendments I proposed. And tremendous damage will take place in the meantime. I am not optimistic about the long-term benefits of such a strategy.

Which brings me to option #2 - a strategy of confrontation. An extremely aggressive approach would be to intimidate the Court by threatening their jurisdiction and funding, or attempting to impeach Roberts or Alito (who may have committed perjury during their confirmation hearings by claiming they would uphold precedent and then failing to do so). These tactics would probably fail, and even if they succeeded would inflict tremendous harm on the constitutional balance.

A less extreme version of the strategy of confrontation would be to apply public pressure - congressional censures, public protests, and most particularly making the Courts and their decisions an explicit political issue. The Democrats in the next Presidential campaign should highlight these decisions, which if they were well-known would be extremely unpopular with the general public. No Supreme Court justice, and most especially not Anthony Kennedy, wants to see the Supreme Court become an issue in electoral campaigns. I believe that making Supreme Court decisions a major element in the campaign would also help Democrat electorally, since it could force the campaign to be much more substantive. The last thing the Republicans want to talk about is repealing environmental laws or gutting civil liberties.

Now some would say that we should not politicize the Courts. To which I respond - the Courts are already politicized. The days of moderate judges who invoke careful legal reasoning drawn from precedent is over. The Court is now ruled by the same clique that we just toppled from power in the Congress and that has drawn Bush down to 26% in the polls. The "four horsemen" on the Court are a constituent element of the conservative movement, faithful vassals of the Republican Party. They should be treated accordingly. One does not give respect to an office when the man holding it is so obviously unfit.

Oh, and by the way - every future judicial nominee by George Bush should simply be rejected out of hand. He's done enough damage. Better no judges at all than more wingnuts.
Posted by Arbitrista @ 8:23 AM
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