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Joseph A. Palermo Headshot

The Supreme Court and the 2008 Election

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First, the stacking of the Supreme Court to the Far Right is already a done deal. It will be known as the most important aspect of George W. Bush's "legacy." There is a solid 5-4 majority for all of the retrograde ideas that Bush has shoved down our throats these past seven years.

The current Chief Justice, John Roberts, was a lawyer for the 2000 Bush-Cheney campaign during the Florida recount, and he votes with arch-conservative Justice Antonin Scalia nearly perfectly.

In 2000, the first woman ever to serve on the high court, Sandra Day O'Connor, stated that she wanted Bush to be president so she could retire knowing a conservative Republican would be naming her successor. She voted with the majority in the infamous 5-4 case, Bush v. Gore, to hand over the Executive Branch to Bush. O'Connor was known to be the "swing" vote on decisions affecting women's reproductive rights. Ironically, she resigned in time to give her seat over to Samuel Alito, a fierce opponent of women's reproductive rights whose wife is active in the anti-abortion cause, thereby erasing her own legacy.

Senate Democrats should have filibustered Alito but they caved in as they always do. Today, the Republicans have abused the filibuster more than any minority party in the history of the Senate. That tells us something about the difference between the two parties.

When Sandra Day O'Connor retired pundits crowned Justice Anthony Kennedy the new "swing" vote. But Kennedy really doesn't "swing" on anything important. Whether the case in question is corporate power versus labor, consumers, or environmentalists, the make up of the Supreme Court today holds a stubborn 5-4 majority against people and in favor of corporations, and will continue to do so for quite some time. Roberts and Alito are in their 50s.

For those of you who believe that Justice Kennedy might play the role that O'Connor once played on issues relating to women's rights, consider the following: In 2007, when Kennedy wrote the majority 5-4 opinion upholding a ban on "partial birth abortion" he cited the "severe depression and loss of esteem" that some women are said to experience following an abortion as one of the rationales for the Court's decision. Although he conceded that there is "no reliable data to measure the phenomenon," Kennedy said, "it seems unexceptional to conclude that some women come to regret their choice to abort the infant they have created and sustained." Kennedy used the concept of "post-abortion syndrome" to justify the Court's ruling, even though the American Psychological Association found no difference in the incidence of depression in women who had abortions and those who had not.

The Democrats in the Senate already failed to stop Bush from changing the make up of the Supreme Court. For the foreseeable future, five extremely conservative Catholic men will dominate the highest court in the land. The 87-year-old liberal Justice, John Paul Stevens, is holding on (bless his soul), but his Herculean effort will be blunted because of the pusillanimity of Senate Democrats when they faced the Roberts and Alito nominations.

The Supreme Court will remain in its present form no matter who is elected in 2008.