Justices wanted (or, all together now: “we are fucked”)

Yeah, okay, we can and should scrutinize Bush’s Supreme Court nominees. Democrats in Congress should subject Roberts to extensive questioning. They should try to pin him down on Roe v. Wade.

But let’s face facts: given the Republican majority, the indifference of the public, and Roberts’ canny “I’m so humbled* and my humility prevents me from offering substantive answers to your questions” shtick, we’re probably stuck with him. (Besides, as history shows, the answers a nominee gives Congress aren’t exactly binding once he puts on the robes.)

Bottom line: Bush gets to fill two vacancies on the Supreme Court this year, and while Republicans contentedly sit around working crossword puzzles and insinuating that “this country [is] actually at war with a bunch of renegade activist judges who perform abortions on the side, while citing Ruth Bader Ginsburg and pleading the Fifth,” we just have to do our best to ensure that the appointees turn out to be a little less radical than the Let’s Pretend Nothing Has Changed Since 1789 (And Also That We Know Everything the Founding Fathers Were Thinking Then) Twins, Scalia and Thomas.

In Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, Cass Sunstein explains how right-wing judges actually are transforming the U.S. Constitution despite their insistence that they are merely deciding cases in accordance with the intent of the Founding Fathers. (U.S. Supreme Court Justice Stephen Breyer also argues against the so-called “originalists” in a book that appears this month.)

Asked for his opinion of Sunstein’s thesis yesterday, Roberts quipped, “I haven’t had time to read Cass Sunstein’s book. He writes a different one every week.” Then Roberts reportedly fell back “on his overarching theory is that he is humble. He embraces modesty. He defers to his colleagues.”

An excerpt from Radicals in Robers appears in this month’s Harper’s. While a few of the facts presented in the excerpt are already outdated — Chief Justice Rehnquist died after the magazine hit the stands — the piece still goes a long way toward exposing the judicial activism, cloaked under the guise of adhering to the original intent of the founders, of the Rehnquist Court.

Sunstein also discusses what some of results could be if, as Justices Scalia and Thomas advocate, the Supreme Court “began to understand the Constitution in accordance with the specific views of those who ratified its provisions.” Although most of the press coverage focuses on abortion rights, there’s far more at stake here than those. Some highlights:

Discrimination on the basis of sex would be entirely acceptable. If a state chose to forbid women to be lawyers or doctors or engineers, the Constitution would not stand in the way. The national government could certainly discriminate against women. If it wanted to ban women from the U.S. Civil Service, or to restrict them to clerical positions, the Constitution would not be offended.

The national government would be permitted to discriminate on the basis of race. The Equal Protection Claud of the Fourteenth Amendment is the Constitution’s prohibition on racial discrimination — and by its clear language, it applies only to state governments, not to the national one.

State governments would probably be permitted to impose racial segregation. As a matter of history, the Fourteenth Amendment was not understood to ban segregation on the basis of race. Of course, the Supreme Court struck down racial segregation in its 1954 decision in Brown v. Board of Education. But this decision was probably wrong on fundamentalist grounds.

State governments would be permitted to impose poll taxes on state and local elections [and hey, look, Georgia’s getting a head-start]; they could also violate the one-person, one-vote principle. On fundamentalist grounds, these interferences with the right to vote, and many more, would be entirely acceptable. In fact, state governments could do a great deal to give some people more political power than others. According to most fundamentalists, there simply is no “right to vote.”

The entire Bill of Rights might apply only to the national government, not to the states. Very possibly, states could censor speech of which they disapproved, impose cruel and unuusal punishment, or search people’s homes without a warrant. There is a reasonable argument that on fundamentalist grounds, the Court has been wrong to read the Fourteenth Amendment as applying the Bill of Rights to state goverments.

States might well be permitted to establish official churches. Justice Clarence Thomas has specifically argued that they can….

Last month Slate’s Dahlia Lithwick wondered why it’s so difficult to find anyone who’ll defend former Supreme Court Justice William Brennan’s characterization of the U.S. Constitution as a living document.

Is it because the words “living Constitution,” like the words “feminist” or “liberal,” have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper — a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Lithwick’s following the hearings all week. She’s far and away the best writer on the U.S. Supreme Court beat. If you aren’t reading her regularly, you’re probably underinformed.

* Have you ever noticed how “humbled and honored” everybody connected with the current administration, including Bush himself, is?


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