Monday, October 18, 2004

Wanted: Strict Contortionists 

Via Zemblan patriots J.M. and J.D.: The President has often described Antonin Scalia and Clarence Thomas as his "favorite" Supreme Court justices. With that in mind, Adam Cohen catalogues some of the qualities Mr. Bush might be looking for in the justices he will likely have the opportunity to appoint, should he win a second term:
For more than a decade, Justices Scalia and Thomas have urged their colleagues to reverse Roe and "get out of this area, where we have no right to be."

If Roe is lost, the Center for Reproductive Rights warns, there's a good chance that 30 states, home to more than 70 million women, will outlaw abortions within a year; some states may take only weeks. Criminalization will sweep well beyond the Bible Belt: Ohio could be among the first to drive young women to back-alley abortions and prosecute doctors.

If Justices Scalia and Thomas become the Constitution's final arbiters, the rights of racial minorities, gay people and the poor will be rolled back considerably. Both men dissented from the Supreme Court's narrow ruling upholding the University of Michigan's affirmative-action program, and appear eager to dismantle a wide array of diversity programs. When the court struck down Texas' "Homosexual Conduct" law last year, holding that the police violated John Lawrence's right to liberty when they raided his home and arrested him for having sex there, Justices Scalia and Thomas sided with the police.

They were just as indifferent to the plight of "M.L.B.," a poor mother of two from Mississippi. When her parental rights were terminated, she wanted to appeal, but Mississippi would not let her because she could not afford a court fee of $2,352.36. The Supreme Court held that she had a constitutional right to appeal. But Justices Scalia and Thomas dissented, arguing that if M.L.B. didn't have the money, her children would have to be put up for adoption.

That sort of cruelty is a theme running through many Scalia-Thomas opinions. A Louisiana inmate sued after he was shackled and then punched and kicked by two prison guards while a supervisor looked on. The court ruled that the beating, which left the inmate with a swollen face, loosened teeth and a cracked dental plate, violated the prohibition of cruel and unusual punishment. But Justices Scalia and Thomas insisted that the Eighth Amendment was not violated by the "insignificant" harm the inmate suffered.

This year, the court heard the case of a man with a court appearance in rural Tennessee who was forced to either crawl out of his wheelchair and up to the second floor or be carried up by court officers he worried would drop him. The man crawled up once, but when he refused to do it again, he was arrested. The court ruled that Tennessee violated the Americans With Disabilities Act by not providing an accessible courtroom, but Justices Scalia and Thomas said it didn't have to.

A Scalia-Thomas court would dismantle the wall between church and state. Justice Thomas gave an indication of just how much in his opinion in a case upholding Ohio's school voucher program. He suggested, despite many Supreme Court rulings to the contrary, that the First Amendment prohibition on establishing a religion may not apply to the states. If it doesn't, the states could adopt particular religions, and use tax money to proselytize for them.
UPDATE: Cynthia Tucker of the AJC adds:
In a speech last year defending the scaling back of individual rights during wartime, Scalia said, "The Constitution just sets minimums. Most of the rights that you enjoy go way beyond what the Constitution requires." That's scary stuff.

But Thomas may be scarier. Conservatives have coined the phrase "activist judge" to disparage jurists whose rulings they don't agree with. But as Scalia described Thomas to Foskett, Thomas is about as "activist" as it gets — the Supreme Court justice most likely to overturn precedents established by prior courts.

"He doesn't believe in stare decisis [let the decision stand], period," Scalia told Foskett. "If a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

So even Scalia has more respect for established case law than Thomas does. A Thomas court might start a crusade against modern-day constitutional rights, overturning everything from the right of all criminal defendants to have a lawyer to the right of women to have access to contraceptives.

Bruce Beattie, Daytona Beach News-Journal. Courtesy of Zemblan patriot J.D.
 Posted by Hello

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