Monday, September 24, 2007

Tales of the Supreme Court.

I recently caught an interesting segment of Fresh Air with Terry Gross. Her guest was JeffreyToobin*, who had been invited to promote his new book- The Nine: Inside the Secret World of the Supreme Court. The main focus of this work is the conservative counterrevolution taking place on the bench in the wake of the George W. Bush presidency. This process has been in the works since Earl Warren (an Eisenhower appointee) set the tone of the court for the last half of the Twentieth Century. For decades a progressive approach was taken to most of the large decisions at the top level of our judicial branch. Roe Vs. Wade, integration, affirmative action, privacy laws and extended protections for free speech were just some of the priorities of the court during those heady years.

When Ronald Reagan became president, the worm began to turn. The Federalist society was formed at Yale, and was dedicated to crafting an enduring conservative transformation in the national legal arena. Robert Bork and Antonin Scalia were among the first faculty advisers of the group. Conservative groups like the Scaife and Olin foundations funded its activities, and the Federalist society soon established a presence in Washington DC. They railed against what they termed the "judicial activism" of the Warren and Burger-led courts. But they had their own agenda- they wanted to limit the power of the federal government to pass progressive legislation. They said that they were concerned with the "original intentions" of the founding fathers. They focused their attacks on the legal argument of "privacy" that the Warren Court had assumed in their support of a woman's right to choose abortion.

Of course twelve years of Republican presidential administrations accelerated the progress of this campaign. Although Bork's nomination to the bench was defeated, Antonin Scalia somehow made the grade. Meanwhile a young lawyer named Samuel Alito toiled under the Reagan presidency, trying to figure out a strategy to overturn Roe Vs. Wade. He was frustrated, but resigned to incremental progress. Anthony Kennedy was the next Reagan appointee, but he proved unreliable when it came to parroting the reactionary line. The tally still favored the pro-choice camp, but it was closer than ever. When the first Bush attained the highest office, there was confidence that the long awaited shift in the court would occur. David Souter was the first appointee under the new regime, and he initially appeared to be as conservative as Scalia. But he underwent an unexpected transition over time, and slowly adopted more liberal views.

Bush would not make the same mistake twice- after a controversial hearings process, Clarence Thomas became the newest justice. Thomas would go on to prove himself to be the most conservative justice since the 1930's. His subsequent opinions have shown that he considers the entire New Deal to have been unconstitutional. He became an important foot soldier in the battle to shift national values. Still... Sandra Day O'Connor (another Reagan appointee) was now the swing vote of the court, and she was an old school Republican who was less interested in engaging the country in a cultural war. Not only would the counterrevolution have to wait, but it needed to weather the Clinton presidency that would usher in two very strong progressives- Ruth Bader Ginsburg and Stephen Breyer.

As the 2000 presidential election approached, folks on each side of the aisle realized that it would determine the fate of the supreme court for years to come. Several justices were on the verge of retirement and whoever sat in the oval office would fill in the gaps. It's certainly ironic that the existing justices actually got to decide the contest. As the state of Florida began working through a recount that suggested Al Gore had won, the court took the extreme step of shutting down democracy and declaring Bush the winner. The vote was 5-4 and fell along partisan lines. It was a historical low point for the nation's highest court, and left an indelible stain on a government branch that was supposed to be above politics. David Souter considered retiring in protest (but stayed so he could eventually get a full pension). Sandra Day O'Connor would later regret the fact that she let politics effect her judgment. As Dubya began to show his true extremist colors, she (reportedly) began to despise his presidency. Ironically, as Toobin points out, she would play an unintentional role in shifting the court even further toward the far right.

When Chief Justice William Rehnquist's health finally failed he was replaced by John Roberts, who had actually advised the GOP during the Florida election recounts. He had been rewarded for his fealty by the man he helped put into office. It is no surprise that he has joined Thomas and Scalia to form an ultraconservative bloc. News only got worse for the nation's progressives when O'Connor decided to step down in order to take care of her ailing husband. Her spot was taken by Samuel Alito- a man she held in contempt for treating women with an anachronistic paternalism. Tragically her husband's condition worsened to the point where he was beyond her help. But there is no going back after retirement from the high bench. Alito's appointment completed the plot of the Federalists that he helped initiate. The swing vote on the Supreme Court is now Anthony Kennedy, a notoriously unpredictable conservative. God only knows what this new group has planned for us.

*Toobin is a senior legal analyst for CNN, a former Assistant US Attorney and a writer for the New Yorker. Perhaps his most famous book (to date) is A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President (2000).

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