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Martin Garbus Headshot

Hey, There, Pay Attention -- The Supreme Court May Be Up For Grabs

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The winner of the next election will pick the next members of the Supreme Court. If Barack Obama is elected with a powerful Senate majority, we may see a political slicing of the now dominant five-man conservative majority. Absent an untimely death, it is unlikely that Obama and a powerful Democratic Senate will, within the next four years, reverse the course set in motion nearly thirty years ago when, after the Ronald Reagan election, the conservative put their stranglehold on the Court.

It will take at least another four years with a Democratic president and a strong Senate majority to deflect the Court.

Roberts, Alito, Scalia and Thomas, all young men who have many decades to sit, together with Justice Kennedy, will dominate the Court for years to come.

Why this is so is explained in greater detail in the new edition of my book, The Next 25 Years, coming out in September.

Obama cannot do it alone. He needs a strong Democratic Senate majority to appoint more than moderate-liberals like Stephen Breyer and Ruth Bader Ginsburg, the appointees of a triangulating, accommodationist, battered President Bill Clinton. The next four years may see the appointment of Justices who evoke Chief Justice Earl Warren and his majority.

Also, for the first time in decades, the makeup on the Court is direct and center in the election. John McCain and Barack Obama have staked out totally different positions.

When the Supreme Court on June 12, 2008 delivered a near death blow to Bush's awful, inhumane detention policies and rejected Bush, Alberto Gonzales and John Yoo's attempt to deny the centuries-old right of habeas corpus, McCain first said, "It's a decision the Supreme Court has made. Now we need to move forward. As you know I always favored closing of Guantanamo Bay and I still think we ought to do that."

Obama applauded the 5-4 Boumedienne v. Bush decision that found Roberts, Scalia, Alito and Thomas in dissent.

McCain reversed his position after he heard from those he needs on the far right, saying "The decision," he said, "is one of the worst decisions in the history of this Court."

Chief Justice Roberts, when testifying at his nomination hearing, likened himself to an umpire in a ball game, who non-partisanly calls balls and strikes, dissenting in Boumedienne preposterously said the courts would now be "flooded" with lawsuits.

McCain quoted Roberts, and Justice Scalia who called the decision "disastrous," "devastating" and tragic, and again resurrected the Supreme Court as an enemy.

But one thing should be clear. The three decisions of the present Court attacking the legal foundation of Bush's war on terror do not show that the Court is now a liberal institution as conservatives now claim. The legal structure created by Bush and his Department of Justice for Guantanamo detainees do not get close to passing the "smell test." That four Justices agreed with Bush is what is remarkable -- not that the five struck it down. And, of course, the laws were too much even for Kennedy but had he gone the other way, it would have been a 5-4 Bush victory.

The last time the Supreme Court was an important issue in an election was when President Richard Nixon, in 1968, spent a great deal of time and energy blaming the Warren Court for lowering the country's morality and for the increase in crime and violence.

This debate is all to the good.

* * *

I was wrong. When I wrote my previous book, Courting Disaster (published by Times Books in 2002),I predicted a conservative rollback. What happened was worse. It was a conservative tidal wave. The Supreme Court swung even more strongly to the right than I had envisioned. Perhaps the Supreme Court's greatest case, Brown v. Bd. of Education, one that I and others thought was totally safe, has been eviscerated. My most critical conservative reviewer said that if I was right about the overturning of Warren Court decisions, not only would he eat his hat, he would also eat the Constitution. Well, he should eat both. And the Declaration of Independence.

In 1955, in Brown v. Board of Education, Chief Justice Earl Warren, speaking for a unanimous Supreme Court, said courts could be used to stop state-sanctioned segregation; that the Supreme Court rejected the sixty-year-old "separate but equal" doctrine; and that the courts would approve integration plans for state-segregated southern and northern schools. The law and logic of Brown, the promise made to America by the nine Justices of the Supreme Court, was that the Constitution required an integrated country, and that the courts would support all efforts to bring about racially integrated education.

The state and school boards throughout the country were required, the Supreme Court and lower courts said, to maintain a desired racial balance. After Brown, we saw courts approve and enforce busing plans and pairings of white and black students to try to integrate America. Some of the most powerful images of the Civil Rights movement, pictures of local police and the National Guard trying to maintain what busing and pairing had achieved, were shown on television and in newspapers. But in the summer of 2007, the United States Supreme Court broke the promise Brown made. When parents from school boards in Seattle, Washington, and Louisville, Kentucky, submitted voluntary plans to integrate schools, five of the Justices said they could not. Justices Roberts, Alito, Scalia, Thomas and Kennedy turned Brown on its head.

During the Brown era, the government was at the school doorstep opening the school to all students; now it was at the doorstep locking the door. Brown, they said, only applied when the state had segregated schools -- when that happened, the courts and armed National Guard could step in. But when parents -- black, white, Hispanic -- voluntarily sought to integrate schools that were segregated by economic circumstances or housing or job patterns, the armed National Guard could stop them. As Linda Greenhouse of the New York Times put it, "It was the Supreme Court that the Conservatives had long yearned for and that the liberals feared." Justice Breyer's one sentence courtroom statement summed it all up: "It is not often in the law that so few have so quickly changed so much."

During the election year, we saw a growing awareness of the impact of presidential elections on the make-up of the Court. At the Republican political debates, the then four nominees for the presidency (John McCain, Mitt Romney, Mike Huckabee, and Ron Paul) were asked to name the Justices who modeled the type of Justices they would like to nominate. On this issue they all agreed. Three names were repeated like a mantra: Roberts, Alito, and Scalia. Thomas, whom they also prized, was not mentioned; they figured Republicans wouldn't get black votes anyway. Nor was Kennedy, because they claim that but for him, Roe v. Wade would long ago have been rejected.

But Kennedy became the swing judge in place of O'Connor. His votes became the dominant fifth vote in the bundle of 5-4 votes that saw the hard conservative takeover, knocking over not only Warren Court decisions, but even earlier decisions of the Roosevelt Court. Alito, O'Connor's actual replacement, is far to O'Connor's right, and far to Kennedy's right, as well. Alito joined Kennedy to uphold the federal Partial-Birth Abortion Ban Act and to treat campaign advertising by corporations and unions as core political speech, despite the restrictions imposed by the McCain-Feingold campaign finance law. Justice O'Connor would have voted to uphold Brown v. Board of Education and the Seattle and Louisville, KY, school integration plans. She was the author of the court's opinion in 2003 to uphold the affirmative action admissions plan at the University of Michigan law school. Alito and Kennedy rejected both Brown and those plans. Furthermore, the prosecution won in nearly every criminal case, upheld a federal anti-abortion law, and made it more difficult for citizens and shareholders to bring and appeal cases.

When the Court voted 5-to-4 to overturn a ninety-six-year-old precedent under which it was always illegal for a manufacturer and retailer to agree on minimum resale prices, the business community was overjoyed. It was the "Gang of Five": Roberts, Kennedy, Scalia, Thomas, and Alito against Breyer, Stevens, Souter, and Ginsburg. The legality of price maintenance will now be judged case by case for its impact on competition. Punitive damage verdicts were severely cut back. Robin S. Conrad of the United States Chamber of Commerce, a leader in the business community, said: "It's our best Supreme Court term ever."

The presidential debates this year saw McCain, the Republican candidate, come down against activist judges -- the code name for liberal justices -- the code name for justices who believe in Roe v. Wade. Conservatives like to divide judges into liberal "activists" and conservative nonactivists who interpret the law rather than making it. Anyone who follows the court knows that conservative judges are as activist as liberal judges -- just for different causes. The conservative Justices Antonin Scalia and Clarence Thomas are actually more activist than their liberal colleagues.

Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to date. In the study, justices were considered to have voted in an activist way when they voted to overturn a federal statute, or one of the court's own precedents. The conservative justices were far more willing than the liberals to strike down federal laws -- clearly an activist stance, since they were substituting their own judgment for that of the people's elected representatives in Congress. Justice Thomas voted to overturn federal laws in thirty-four cases, and Justice Scalia in thirty-one, compared with just fifteen for Justice Stephen Breyer.

And by overturning the court's own precedents, the conservatives were far more activist. Justice Thomas voted to overturn precedent twenty-three times, and Justice Scalia nineteen times, while the court's four liberals each did so in ten cases or fewer.

Activism is neither good nor bad, neither right nor wrong. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. It is hypocritical for Republican presidential candidates to pretend that Roberts, Scalia, Thomas, and Alito are not activist, and turn to judicial activism into a partisan talking point, when the numbers show a very different story.

The entire dialogue, which tens of millions of voters and television commentators believe, is a lie.

* * *

Given the ages of the present members of the Court, it is reasonable to expect that the next president will have two nominations.

That's one of the reasons why who controls the Presidency and the Congress is so important.