Just One More Justice
At the polls last November, conservatives and libertarians who vote according to conscience had two options: Bob Barr (Libertarian Party) and Chuck Baldwin (Constitution Party). Combined, these two garnered only 719,655 votes—a paltry amount compared with John McCain’s 59,082,002. For those who believe in smaller government, fiscal responsibility, and individual liberty, the 2008 election was the perfect opportunity to reject the GOP’s latest insult. Why, then, did 59 million Americans hold their noses and pull the lever for McCain?
The answer is complicated, especially in a system that discourages third parties. Yet, while systemic barriers tell us part of the story, we must not discount the issue of judges. Other than a dislike for the Democratic Party, control of the federal courts—especially the Supreme Court—has become the central issue that has garnered sizeable conservative and libertarian votes for Bush I, Bob Dole, Bush II, and now McCain.
In debates with fellow travelers about McCain, I often heard the following: “Sure, he’s not perfect, but if we get one more Roberts or Alito on the Supreme Court, we can rein in some of the real excesses of government and maybe even overturn Roe.”
Republicans have controlled the White House for 28 of the last 40 years and have nominated seven of the nine sitting Supreme Court justices. (Actually, four years should be tacked on to the Republicans’ time of possession because Jimmy Carter had no opportunity to appoint a justice.) Despite the GOP’s control of the Court, we have seen few watershed decisions curbing government power or protecting individual rights. In fact, just the opposite has occurred.
For example, in Gonzales v. Raich (2005), a landmark Commerce Clause case, the Court decided that Congress’s power to regulate local, intrastate matters is boundless. The question presented in Raich was whether Congress could prohibit the medicinal use of cannabis via the federal Controlled Substances Act when the cannabis at issue was grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crossed state lines, and never was sold in the stream of commerce. Even conservative lion Antonin Scalia concurred in the judgment.
Another example is Kelo v. City of New London (2005), in which the Court deleted the “public use” requirement from the Fifth Amendment and approved government taking and transfer of private property when the transferee promises to make a more productive use of it than the original owner did.
And let’s not forget Grutter v. Bollinger (2003), in which the Court held that the Constitution does not prohibit the University of Michigan’s law school from using race in admission decisions to obtain “the educational benefits that flow from a diverse student body.” So much for the color-blind Constitution.
Use of international law has also been on the rise in recent years. When prohibiting the death penalty for murderers who are mildly mentally retarded, the Court, in Atkins v. Virginia (2002), cited a plethora of foreign decisions in support of its ruling.
Not so fast, a loyal Bush or McCain voter might say. What about District of Columbia v. Heller (2008), in which the Court held that the plain language of the Second Amendment recognizes a personal right, belonging to “the people,” to possess firearms? Without Dubya’s nominations of Roberts and Alito, the right to bear arms might be confined to service in state militias or the National Guard.
Undoubtedly, Heller was correctly decided, and President Bush’s two Supreme Court nominees seem to be excellent jurists. But in the greater scheme of things, Heller has not made a difference in the lives of ordinary Americans. Reasonable gun-control laws are still permissible; Heller simply struck down Washington, D.C.’s ridiculous ban on possession of usable handguns in the home.
Even if one considers Heller a home run, surely it cannot outweigh the multiple strikeouts from the Bush administration that have adversely affected millions of lives. On the economic front, Bush gave Americans a ten-trillion-dollar national debt that is 70 percent of GDP, the highest percentage since 1955. Good-paying manufacturing jobs continued to move overseas; America has lost three million of them since 2001. For those who still have jobs, median incomes fell by $1,000 between 2000 and 2006.
With the signing of the Medicare Prescription Drug Modernization Act, President Bush set in motion the largest expansion of the welfare state since 1965. The law is expected to cost $1.2 trillion over the next ten years.
The federal government’s power over local schools has also increased. President Bush was a champion of the No Child Left Behind Act, which imposed outcome-based education in exchange for federal funding.
The USA PATRIOT Act of 2001 was a result of President Bush’s ongoing “War on Terror.” Under this legislation, government investigators can more easily eavesdrop on our internet activity, and law-enforcement officers are now in the “domestic intelligence” business. Precious civil liberties took a backseat to security.
Of course, the Bush measure that will have the most lasting effect is the Emergency Economic Stabilization Act of 2008, which authorizes the secretary of the treasury to spend billions to purchase and manage “troubled assets” from financial institutions. This is the largest government intervention in the private economy in the history of the United States. It makes FDR’s New Deal and Truman’s seizure of the steel mills look like small potatoes.
While the shaping of the judiciary is one issue a voter should weigh in casting a presidential ballot, it pays to remember that the Supreme Court is not the engine behind American government, nor is it a suitable vehicle to bring about long-term change. The elected branches of government are the real seats of power and the mechanisms that reshape society. Conservatives and libertarians who have voted in election after election for left-leaning GOP presidential candidates in hopes of controlling the courts have received a dismal return on their investment. In so voting, they have turned a blind eye to the massive expansions of federal power and deleterious economic and social policies that GOP candidates and presidents have pushed.
The Obama presidency will be nothing new. It represents the same opportunity that we’ve had all along, since Republicans haven’t changed the world through the appointment of judges—and were never going to.
This article first appeared in the January 2009 issue of Chronicles: A Magazine of American Culture (Cultural Revolutions).
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The judiciary is rapidly becoming irrelevant by means of the Congress's penchant for passing generic laws which are then turned over to Executive Bureaus to flesh out with rules which are then administered by administrative law judges, who are employees of the Executive Branch, and who are not subject to Judicial Branch (ie court) review. We are in the midst of a sea change wherein a person is "innocent until proven guilty" to one where everyone is guilty, and subject to immediate torture (tasers etc) and even execution for any sign of resistance, up to and until one proves their innocence.
Constitutional law has about as much to do with the Constitution itself as the study of the etymology of the word "pork" has to do with an actual hog killin' on a cold November day.
Although Mr. Hamilton and Mr. Madison, particularly Mr. Hamilton, did not get the document which they had schemed for, the egg of the cockatrice which would evnetually hatch into the Republicans and Lincoln with all that would follow was embedded such phrases and clauses as "the General Welfare" of the preamble, the commerce clause, the "elastic clause" and in Hamilton's "implied powers," which he conjured up out of whole cloth. However, the union of constitutionlly federated republics might have survived if men dedicated to that end had been the main force of the polity. A constitution cannot protect such a union; only men so minded with the requisite courage can. Where there are no republican men, there can be no republic or union thereof, be the "constitution" ever so eloquently worded.
The elites trot the Constitution out to awe us rubes much like the elites trot the Queen of England out to begin Parliament. Meanwhile, they do as they please.
"Just one more justice" is the nose ring by which the GOP has led around the mainstream pro-life movement for years, if not decades. It is part of what I call the perpetual "If only" game. If only "we" (i.e. GOP) get control of the House. If only we get control of the senate. If only we take the White House. If only we achieve all three of these goals. If only we get "one more justice."
All of these goals have been accomplished. Roe and the Culture of Death continue to exercise iron-fisted rule over our laws and our society, with no end in sight.
I have tried for years to persuade well intended, politically active pro-lifers to get off this GOP-owned squirrel cage and to stop acting like, well, trained squirrels. What I have to show for my efforts is exactly what they have to show for theirs: bupkes.
I'll admit that one of the reasons I voted for the neo-con McCain was the question of Supreme Court appointments. There's no doubt that BO will nominate horrendous left-liberal scum.
But on the other hand, who gave us John Stevens? Anthony Kennedy? David Souter? Who refused to do some really serious arm-twisting for Robert Bork?
Our great conservative Republican leaders. Well, swive them.
Excellent post Joseph Salemi,
On the one hand you have a party where their appointments are 100% evil, and on the other hand you have a party that tends to appoint justices as liberal as they think they can get away with.
Though one very positive development we've had lately is that the Rockefeller Republicans seem to be losing the will to live (see latest Bush interview), much less the will to sneak/force one of their own on to the Supreme Court bench over the objections of those much better and stronger than they are.
Time is on the side of conservative leaning political forces in this country...
Just so long as the Liberal Elite-Minority Alliance can be properly riven, and/or the basis of the Liberal Elites' power undermined to the point of failure.
Oh yeah, and the young blood has to stand against ripping off the taxpayers. It was quite hilarious to watch Kristol on FoxNews Sunday saying, well, that he thinks BO should put more of his Stimulus Package into Military Spending!
Let's just pray the younger Republican members of Congress don't read the Weekly Standard... If they do, there's nothing but doom ahead.
"Just so long as the Liberal Elite-Minority Alliance can be properly riven..."
Just to elaborate a little on this, the KEY is to get California to default on its federal tax payments, so they'll get thrown out of the Union.
Either that or an uprising by La Raza, which might be a bit more messy.
Bob Johnson @5
Re: "Time is on the side of conservative leaning political forces in this country…"
Not time, Bob. Demographics. As I have stated in previous posts to other columns, the Culture of Death is self-extinguishing. Those most likely to support the continuation and flourishing of the Culture of Death are the least likely to be born or conceived.
If, by "conservative," you include "pro-life" (as distinguished from the faux GOP "anti-abortion"), I suppose we're both right.
Joe @4
Re: "But on the other hand, who gave us John Stevens? Anthony Kennedy? David Souter? Who refused to do some really serious arm-twisting for Robert Bork?"
Bingo, Joe. You get it! I.e. the whole quadrennial GOP-platform "pro-life" scam.
Mark @8,
One can say that there's been a shift on that front since Souter, given that all three Republican nominated Justices since him have voted pro-life on as many cases as they have been given the opportunity to do so.
(See Clarence Thomas: Planned Parenthood vs. Casey; and John Roberts, Clarence Thomas, and Samuel Alito: Partial Birth Abortion Ban of 2007.)
Bob @9
Your observation renders faint hope. If Roe were overturned tomorrow by SCOTUS, what would be the outcome of any initiative by any of the 50 states to outlaw abortions? Don't hold your breath, if you are 100% pro-life. Note what my brother, Kirt, observed to me recently about this past fall's decisive defeat of a state-wide anti-abortion initiative in S (or was it N) Dakota--a supposedly "conservative," "pro-life," pro-W. Bush state.
If memory serves me correctly, neither Roberts nor Alito--during confirmation vetting--challenged Roe as established law (aka "stare decisis").
As I have said repeatedly in Chronicles blogs: the American people continue to get the government they deserve, vote for and--apparently--want.
Mark Higdon, @10: The anti-abortion initiative was defeated in South Dakota, and another anti-abortion issue in Colorado was also defeated. You are right, even if there were an overturning of Roe, it would not be a panacea and the fight would just drift on down to the state level, where who knows how long it would take, if ever, to bring back laws against abortion. Did you note, also, in Oregon and Washington there were assisted suicide type initiatives that passed. These are gauges of the American mind-set, I think, which is focused on the cult of death.
The back-to-back defeats in socially conservative South Dakota, a state with but one once-a-month abortion "clinic", of anti-abortion legislation is proof that the fight to stack the Supreme Court with originalists is pointless in the fight for the unborn. The problem for Right-to-Lifers is that the cultural zeitgeist is firmly in the hands of the Gramscian Left. The moral squalor that America and Western Europe is steeped in can only be defeated by cultural renewal, not by voting for George W., Jeb, Mitt or Granny Palin.
Derek,
Even with just four originalists on the court, the rights of the unborn have been advanced greatly relative to where they were when all the justices save one was a liberal.
Maybe we'll never get to a point where all forms of abortion are illegal, but so what?
Saying the pro-life movement is futile just based on that is as stupid as saying it's futile for a Young Stock Broker to make trades just because you're sure he'll never become the prince of Wall Street anyway.
But for those saved by the Partial Birth Abortion ban, I know of not one child to escape the abortuary due to the efforts of the Supreme Court. With an eight year reign for Obama almost assured, who is to say the Partial Birth Abortion ban won't be struck down by 2015 or so. Justices Stevens, Ginsburg, Souter, Kennedy and Scalia are almost sure to be replaced during the Obama presidency. And the Democrats rarely screw up their judicial picks.
The pro-life movement will not win legislatively or judicially as 1) it is tethered to a Republican Party which cynically prefers to use the pro-life movement as a source of votes with little recompense and 2) the victory of the cultural left in reshaping the mores of the country. The United States has abortion rights because most Americans either support abortion rights or couldn't be bothered by the issue.
Abortion is being reduced incrementally due to the efforts of private organizations, churches and individuals. The Republican Party is of no help.
I think you guys are casting too stark a shadow on the situation. This is like trying to tip over a big snack machine, sometimes you got to rock it back and forth several times before you tip it your way.
This main article is highly misleading. Clearly, so many of the advances of radicalism in our country have happened through the high courts, to say it is not "*the* engine" is just a moot point. Duh.
It's easier and more powerful to control 5 to 9 people who will then be sheltered from election for life rather than swing the congress consistently.
The failures of the GOP in this light are obvious, but is not the trend of the past 40 years (as plucked by the author) more of a function of the baby boomer generation at large rather than some specific, insidious failure of a political party?
As one commenter pointed out, the last 3 GOP appointed justices appear neatly conservative. Things will be much worse with Obama's nominees.
It is futile to strive to destroy the GOP if it cannot be replaced. Working from within will be much more powerful, and the larger solution will be multi-faceted through gov't and churches.
Chronicles should continue its efforts but remember not to let the perfect (or the past) get in the way of the good.
With regard to demographics, most of the pro-life evangelicals are not reaching the replacement rate of 2.3 children per family. This is a violation of the First Commandment: Be fruitful and multiply. When Christians have 3 kids (more is better) per family we'll get some serious social changes. My recommendation is simple; screw college! Skilled craftsmen are now better paid than ill-educated college grads -- I ought to know, because I am one and I fathered 5 children and sadly 2 died pre-term.
Conservatives may think John Roberts is on their "side" but they misunderstand what he is about.
Roberts has been stand pat, business orientated Republican all his life. No doubt his decisions and influence on such cases will be towards the Right.
However, on social issues, Roberts is not going to do anything that will upset the apple cart. If the phrase "just one more judge" means anything it means repealing Roe v. Wade. But Roberts, as a Republican partisan, is well aware that Roe existence has benefitted the GOP and will not do anything to affect that assistance. Ergo, probably no abortion cases before the high court so long as he's chief justice.
No wonder Sen. Russ Feingold voted to confirm Roberts. He understands the politics of Roe better than most conservatives do.
The reality is, after 30 years since the founding of the Moral Majority, only three justices: Alito, Scalia and Thomas would vote to overturn Roe.
Mr. Scallon, you raise an interesting point, but I'm not sure how you can be so sure. I looked up Roberts' views on Wikipedia (forgive me), and he seemed to harbor some pro-life views in his past, whether they have been well-covered or not now as a way to get through or as a lack of belief that indicate your point remains unclear to me.
He seems to have sneakily phrased his legal beliefs in terms of following precedent, which would not be there once he was on the SCOTUS. This seems prudent following the Bork massacre. Every legal mind I have talked to (many, pro-choice) acknowledges that there is no real right to privacy in the Constitution and that Roe v Wade will be overturned sometime "soon". We do not need pro-life champions as much as we need non-zealous good lawyers to take this first step.
To say no abortion cases would come before the court with him as Chief seems an overstatement. Certainly, he is shrewd, and if his beliefs of court minimalism plus his own Catholic understanding of truth (and perhaps his own two adopted kids) mean anything, he may just be waiting until a majority ruling could be had.
Why would he bring the issue up now to lose?
Alito, Scalia, Thomas and even Roberts appear to be 4 of the 5 we're looking for. This initial article clouds that fact, cherry-picking SCOTUS rulings from before Alito and Roberts and letting the past 40 years have more importance than the present.
With today's Supreme Court makeup, One More Justice has a truthful ring to it. Conservatives are just not used to fighting and persevering for what we believe in (at least not in our country, in our time).
Someone needs to bump this broken paleo record out of its singular, cynical groove. One more justice now means a lot more than it did 5, 10, 20, 30 years ago.
Of course, the overturn of Wade wouldn't do anything instantly in our country, but it would enable a huge number of common sense laws that most people favor but have been wiped off the books by Casey (sort of arguing on the grounds of threat). The majority of people out there seem to think "Well, *I* would never have abortion, but I can't tell other people what to do."
As people would realize there were alternatives to unfettered access to instant abortions, then real debate begins and some of the recent failures at the state level could turn into successes.
The "One More Justice" theory dies at noon next Tuesday. Barack Obama will be the next president and will most likely be re-elected in 2012. Justice Ginsberg will retire this summer and Justice Stevens will die, become incompacitated, or retire the year after. Justices Souter, Kennedy and Scalia will retire by the end of Obama's first term or early in his second. And I would expect Justice Breyer will retire late in Obama's second term so that Obama, and not a Republican, will choose his successor. Democrats do not screw up their Supreme Court picks in the way Republicans are prone to do. The "Wishing and Hopin'" wing of the anti-abortion movement will be as dead as the singer of that tune, Dusty Springfield.
As an aside, I expect John McCain will endorse Obama in 2012, especially if the Republican nominee is Mitt Romney, which I expect it will be.