In watching the debate about Supreme Court nominees I feel that, as is so often the case, the Right is defining both the language and the terms of the debate. They are arguing that they want someone on the court who merely interprets the Constitution and does not "legislate" from the bench, and that any decisions that break new ground in the interpretation of the Constitution is "legislating'. They further argue that the only true method of interpretation is "strict interpretation of the text" or following the "original intent" of the Constitution.
Liberals, on the other hand argue that they want a Court that will uphold "freedom of choice", that will keep religious based doctrines such as "Intelligent Design" and prayer out of the classroom and that they want a Court that will protect the Civil Liberties of it's citizens. This, in my view, plays right into the hands of Right because it is totally result oriented, and makes no reference to the Constitution, thus lending credence to the argument that what liberals want is a court that legislates. There is, in fact, not a single Supreme Court Justice, now or ever, who would agree that he/she starts out with the result he/she has in mind, but rather would maintain that through a careful analysis of all the facts and law before the court, he/she arrives at whatever conclusion is the necessary end of this reasoning process. In my view, however, the Justice who follows the concept of evolving standards is far more true to the original intent of the framers than the Justice who tries to freeze the Constitution in a time warp, i.e. in the concepts that were in vogue at the time the document was written.
With that in mind, I wrote my dissertation, entitled, "The Supreme Court - Consequences As New Appointees Shift its Balance" which I posted on October 23, 2005 to show that "Original Intent" or for that matter "Strict Interpretation" are not concepts that have any validity, and that in fact, as early as President Washington's day they were already rejected as unworkable and inappropriate; that pushing these concepts now it is an insincere attempt to arrive at the outcomes which the radical Right favors and not an appropriate method of Constitutional interpretation. I also seek to counter the denigration of the term "liberal" and try to deny to the radical Right the label of "conservative".
Friday, October 28, 2005
Sunday, October 23, 2005
The Supreme Court - Consequences As New Appointees Shift Its Balance
Different Approaches to Constitutional Interpretation and Their Consequences
The Changing Court
The debate about the nomination of Harriet Miers, who is now the nominee to replace Justice O’Connor, which follows on the heels of Justice Roberts assuming the post of Chief justice is in the forefront of political discourse; as well it should be, because much is at stake. More than one could tell either from the media or from the interest groups on either side of the debate. Nor can one tell from the debate that there are legal issues involved and not just policy issues.
That is not to say that a judge’s political philosophy and even more important his/her approach to judicial interpretation are not relevant. They are! The difference between a judge who believes in a “living constitution” on the one hand, and one who believes in “original intent” or “strict constructionist” or “an activist judge” on the other, are enormous, but their meaning is often lost in political posturing both by the left and the right, though in my view much more so by the right.
Justice Stevens, one of the “liberal” members of the court, in an address before a Bar association explained the difference between interpreting the law and making policy. In referring to some conclusions he had reached, he explained that he believed that as a matter of policy that the outcomes were:
"unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator….”
In the controversial eminent domain case that allowed the "taking" of private homes for a commercial development in New London, Conn., he said that his decision was:
"entirely divorced from my judgment concerning the wisdom of the program.”
The constitution, in his view gave no basis for finding the conduct of the municipality to be unconstitutional.
Similarly, Justice O’Connor, while dissenting from an opinion of the court that declared the execution of anyone before the age of 18, said:
“Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18”.
Thus if we, and I don’t mean just lawyers, are to join the debate intelligently and not just in sound bites, we must start by reading the relevant portions of the constitution. For example, “A Women’s Right To Choose” may be good policy, but as a matter of Constitutional Law that is not enough. For it to have a constitutional basis we must find its foundation in the Constitution.
But to say that Judges do not necessarily vote for their preferred policy choices and do try to follow the law or the Constitution when handing down decisions is not to say that a judge’s judicial philosophy is not of paramount importance. But before I get into the proper interpretation of judicial philosophy let me begin by more fully exploring what is at stake.
What is at Stake
To listen to the debate one would think that the only thing that is at stake is the Right to an Abortion. As important as that issue is, there is far more at stake. To understand this we must begin by that analysis which lies at the heart of Constitutional interpretation. For example, in discussing Roe vs. Wade one must understand on what provision of the Constitution this decision was based on, and as it may seem, there are few articles in the media which discuss this, or even deem it to be relevant, although it is at the heart of the matter. (For those who wish to read the decision in full it can be found here.)
While the court in Roe vs. Wade refers to other sections of the Constitution it’s primary reliance is on the 9th amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Whether we are deemed to be Strict Constructionists, Originalists, Activists, Liberals or Conservatives, we must still look at the relevant language of the Constitution and if it is not clear we can look at its history. There is virtually no debate among lawyers and judges as to this being the correct way of interpreting any legal document.
With this in mind we look at the language. It is vague! But it is easier to understand if we look at its historic context. When the founders drafted the constitution it did not contain a Bill of Rights. Many opposed its approval on this ground, but others said an enumeration of rights might have the opposite effect of what was intended because it would be impossible to list all the rights that the people have. For that reason the 9th amendment was added to make it clear that the previous eight were not intended to be all-inclusive. At the same time it left open a plethora of uncertainty as to what other rights are to be implied. If none are to be implied then the amendment becomes a nullity. If any are to be implied, they must be found without specific mention in the constitution.
This is where the “Right to Privacy” comes into play and it was not first propounded in Roe vs. Wade. It was first mentioned as long ago as 1891 in Union Pacific R. Co. v. Botsford, 141 U.S. 250 at page 251. Its most important reference to the concept, however, was in Griswold v. Connecticut decided in 1965, and the issue was not whether a woman has a right to an abortion, but whether a law forbidding contraception stood constitutional muster. This was where the concept of privacy as being protected was enunciated most clearly and it formed the basis of that decision.
In 1981, Roberts referred to the "so-called right to privacy…." If he believes, as this might indicate, that there is no such right, and if he is not willing to defer to a precedent that has been reaffirmed by numerous decisions of the court over a period of forty years, (Stare decisis) then not only is the right to an abortion no longer protected, but neither is the right to practice contraception. Many other cases, including a recent one (Lawrence vs. Texas 539 U.S. 558 (2003), which relied more on the equal protection clause of the 14th amendment than on the 9th amendment striking down a Texas law that criminalized homosexual conduct, would be reversed.
Roe v. Wade
While I have said that much more is at stake than the right to abortion, so much controversy has been engendered by this case that a greater understanding than is now generally available appears to be in order. Most people, for instance believe that Roe vs. Wade made all laws that restrict abortion unconstitutional. That is a serious misunderstanding of the holding of the case. The court in its finding said:
“With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
The court then went on to a more specific guide, as follows:
(a) For the stage prior to approximately the end of the first trimester, thr abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The provision of (c), as could be expected, became a bone of contention in a later case where the court upheld a Texas requirement for tests to determine the viability of a fetus where in the doctor’s judgment the fetus was twenty or more weeks of gestational age. While this seems to have been a minor narrowing of the Roe holding, it was considered by many to presage a constant narrowing of the freedom given by Roe.
It is to be noted that the only time that the court allows so called abortion on demand is during the first trisemester. However, opponents argue that even (c) is in effect abortion on demand because they claim a doctor can always be found who will certify a danger to the health of the mother, even if that is only that her mental health will be endangered. More radical elements argue that even the life of the mother is irrelevant because we are simply exchanging one life for another, and they hold to the view of some religious groups, including the Catholic Church that life begins at conception. Most of these same groups also believe that contraception is a sin, which should be proscribed, though they mute this view, recognizing that its promulgation would hurt their abortion fight.
Looking at the court, as it is presently constituted, the addition of Roberts in place of Chief Justice Rehnquist is not likely to lead to an overthrow of Roe vs. Wade since Rehnquist was always opposed to the outcome in Roe. The only Justices now on the court who are committed to overturning the decision in Roe v. Wade are Justices Thomas and Scalia. Thus the replacement of Rehnquist by Roberts would still leave the present line-up intact. The replacement of Justice O’Connor, however, leaves an uncertain landscape because Justice Kennedy is considered to still be on the fence. Thus if O’Connor is replaced by an anti-choice stalwart, and it is not clear where Miers stands, we would have a 4 to 4 line-up with Justice Kennedy becoming the potential swing vote. On the more peripheral issues, however, which bear on how difficult it would be to have access to an abortion, where Justice O’Connor was frequently the swing vote, it is likely that the court would take a more restrictive view of abortion, even if it does not actually over rule Roe.
However, if Justice Stevens, who is now 85 years old, were to retire we would have a whole new court, which could, and probably would, eliminate the concept of privacy from the constitution and thereby reverse not only Roe vs. Wade, and the right to abortion, but Griswold and the right to contraception, and would reinstate laws criminalizing homo-sexual conduct. If these results seem frightening, they could very well be but the tip of the iceberg.
UNDERSTANDING “STRICT CONSTRUCTIONISM”
It is well to begin our discussion with “strict constructionism” because this was an issue that was debated at the dawn of our Constitution. It turned on the creation of the Bank of the United States, which was the brainchild of Alexander Hamilton. Its introduction in the Congress aroused a storm of controversy not only about its wisdom but more fundamentally about its constitutionality. One of its vocal opponents cried:
“This bank is unconstitutional! We have no power to grant a charter to any private corporation!” He went on to point out, “ that a power to grant charters of incorporation had been proposed in the General Convention and rejected.”
Hamilton’s supporters countered by invoking the doctrine of “implied powers.” They argued:
“If Congress may not make laws conformable to the powers plainly implied though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years labor is lost to the public… for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the Constitution.”
After Congress passed the bill by a vote of 39 to 20 Washington, who believed that the issue of Constitutionality was a Presidential responsibility, considered vetoing the bill on that ground. To help him reach a conclusion he asked for an opinion from his Attorney General, Edmund Randolph, who viewed it as unconstitutional. Still troubled he asked for opinions from Jefferson and Hamilton. Hamilton carried the day, arguing,
“That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power…”
Washington was convinced and signed the bill into law.
Subsequently, after the Supreme Court established its power to interpret the Constitution in the seminal case of Marbury vs. Madison in 1803, assuming a power that was not specifically granted in the Constitution, but which the court argued was implied and it upheld the formation of the bank in McCullough vs. Maryland in 1819.
Since then the number of times that various branches of government have departed from the strict language of the constitution are legion, but the debate has never entirely ended. However, it is difficult to imagine how the United States would have survived if “strict constructionism” had consistently been followed. It has during the course of history been invoked by whichever side believes that its political agenda is best served by this doctrine or alternatively is served by an interpretation of the constitution which interprets the language of this document in the light of conditions as they exist today. Under a strict interpretation, the power to criminalize the sale and possession of heroin, regulation of child labor, and of wages (the minimum wage and overtime pay) as well as Social Security, Medicare and Medicaid, to mention a few, would be in serious doubt.
UNDERSTANDING “ORIGINAL INTENT”
Original Intent is an even more difficult term to define and apply because it was not debated during the formative period of our Republic. It has, however, become an argument that runs parallel to Strict Constructionism. It’s basic tenet is that in interpreting the Constitution we may not take into account changing conditions in interpreting the Constitution but must be bound by the meaning as it was understood by its framers. The difficulty with this is that the constitution was deliberately left vague so as to satisfy various factions, each of whom would have had a different interpretation of the meaning of the language. In addition, as we have seen, Hamilton, one of the framers of the constitution, and the principal author along with Madison, of the Federalist papers, which was the main instrument in convincing the colonies the adopt the constitution, had an expansionist view of its language.
Furthermore, the constitution now has been amended 27 times. Can we look to the intent of the constitution as it was written or must we look to the intent of the amendments? For instance the fourteenth amendment states,”…; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” At the time it was enacted it was intended to protect the newly emancipated slaves, but it has since then been interpreted to make all ten amendments that constitute the Bill of Rights apply to the States. Original Intent? Probably not, but it does seem to fit into the category of Strict Interpretation, which makes it into an interesting paradox since the term Strict Interpretation and Original Intent are generally used by its proponents as though they were interchangeable. More problematic are the decisions regarding corporations, which in a series of cases beginning as early as 1866 found that corporations were persons within the meaning of the 14th amendment. I do not believe that this conclusion can be justified by any language found anywhere in the constitution. Certainly, the original intent of the 14th amendment was not to protect corporations, nor is there any language anywhere in the constitution that deals with this question. Nevertheless, the court reasoned that a corporation is nothing more than a collection of individuals and therefore has all the rights and immunities of individual persons. Of course corporations are not just a collection of individuals, as are partnerships. They have qualities that individuals do not possess, such as the protection from creditors of individual shareholders; they are also taxed differently from individuals and have economic power that could never be matched by individuals. But does this reasoning fit into either the doctrine of “original intent” or of “strict interpretation”? Yet proponents of those doctrines are not likely to strike them down.
Proponents of this doctrine, who generally want to overturn Roe vs. Wade and most likely Griswold, et al are also conscious that they must justify overturning a precedent of half a century duration. They have come up with the argument that the Dredd Scott decision, (Scott vs. Sanford 1857) is a perfect example of a decision that is so bad that no one could question the desirability of a reversal (They equate it with the decision in Roe vs. Wade which most can agree is a stretch) and they imply that it was, in fact reversed in due course. Its result was without question an affront to all anti-slavery forces, and even to those who sought compromise, but it was not reversed. It was overturned after the Civil War by the 14th amendment.
More important, however, is that under the doctrine of original intent, it was most likely a correct decision. When the Constitution was written both slavery and involuntary servitude were accepted not only in the southern states, but in many northern states as well. While the constitution never uses the word slavery or servitude, its reference to “free persons and 3/5th of all other persons” is clearly a reference to the existence of slaves whose number are to be used for apportionment purposes. Furthermore, even those who abhorred slavery, did not at the time the Constitution was drafted and adopted, envisioned someone of African descent as a citizen, or of having rights such as those held by whites. While by the time of the Dredd Scott decision opinion had changed, particularly in the North, and if the court had taken cognizance of this change in popular opinion, the decision might well have been drastically different. Under the doctrine of “Original Intent,” however, the decision was probably correct. Proponents of “Original Intent,” of course, cannot admit this or their approach would be rejected by the vast majority of Americans. Both “Original Intent” and “Strict Interpretation” if applied consistently would destroy our whole edifice of juridical history and put the U.S. into the 19th and to some extent into the 18th century.
Without the concept of a Living Constitution, and the concept of “evolving standards of decency” which the Supreme Court has relied on, we might still allow corporal punishment, such as branding and whipping.
Understanding the Meaning of Activist Judges
As far as I know no one has ever tried to define this word. It has generally been used as a word of deprecation to define those judges who believe in a living constitution or who interpret the Constitution in the light of existing conditions or create new rights for the American people, such as the right to contraception. Though, as has been shown in relationship to declaring corporations to be persons, albeit artificial ones, judges who normally hold to a so-called strict interpretation are quite capable of deviating from this standard when there values require it.
It seems much more logical, however, to define activist as a judge who does not hesitate to strike down Acts of Congress. Using this standard, we find that it applies more frequently to judges who are considered to be “conservative” rather than to those deemed “liberal.” Using this standard we find the opposite of what most people might assume. It turns out that by this standard Justice Thomas is the most activist judge and Justice Breyer, a judge generally grouped among the liberal four is the least activist. In fact it appears that the Justices presently on the court have during the years that they have been together on the court i.e. 1994, have struck down Acts of Congress as being unconstitutional in the percentages shown below:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
It is evident from this that there is a correlation between being liberal and deferring to our elected representatives, which is the opposite to what we have been led to believe by a barrage of disaffected right wing zealots, who denounce the court whenever it does not rule in accordance with its dictates.
Understanding the Meaning of a Liberal Judge
For most of the decade between the advent of the New Deal of Franklin D. Roosevelt until the rise of the new Right with the election of Ronald Reagan, liberal was a term that was associated with the programs known as the New Deal, which was generally popular and the term was probably embraced by most, who supported the tenants of that program. The term has now fallen out of favor to a large extent because it has been denigrated by those who generally would like to see these social programs dismantled. It most likely also lost its glitter because of its association with many of the excesses of the ’60s. Republican and right wing activists invariably use it as a pejorative term.
Franklin’s Merriam Webster’s electronic dictionary defines liberal as “generous,” “not narrow in opinion or judgment” “tolerant.”
The Encarta Word English dictionary uses these definitions:
1. tolerant of different views and standards of behavior in others
2. favoring gradual reform, especially political reforms that extend democracy, distribute wealth more evenly, and protect the personal freedom of the individual
3. generous with money, time, or some other asset
5. not limited to the literal meaning in translation or interpretation
6. concerned with general cultural matters and broadening of the mind rather than professional or technical study
7. relating to a political ideology of liberalism
8. somebody who favors tolerance or reform
Given these accepted meanings it is hard to understand why the term has fallen out of favor. In political terms, I believe that the definitions of Encarta in 1 and 2 probably best describe its philosophy.
In terms of the Justices of the court, Justices Souter, Stevens, Ginsburg and Breyer are generally described as liberal. They appear to fit not only definition 1 and 2, but as a matter of constitutional interpretation fit the definition of (5), for which they are often criticized, but they would maintain that given the nature of the Constitution, this has not only been a desirable means of interpretation since the early days of the Republic, but has been an absolutely necessary one. They are often accused of making law rather than interpreting it, but as we have seen, other methods of interpretation have not historically been possible. Conservatives have as often placed their own worldview on the Constitution as liberals, e.g. finding corporations to be persons, or enunciating doctrines, as exemplified in the Dredd Scott decision.
Understanding the Meaning of a Comservative Judge
For most of the period since the New Deal and even long before, a conservative was generally considered as one who was pro-business. Conservativism in this sense was deeply ingrained in the Republican Party. For Instance, Calvin Coolidge, The Republican President in the 20s famously said, “The business of America is business." (January 17, 1925) And Dwight Eisenhower’ Secretary of Defense, Charlie Wilson, said, “What is good for General Motors is good for America.” This however is not the dictionary definition of a conservative.
Franklin’s Merriam Webster’s electronic dictionary defines the term as, ”disposed to maintain existing views, conditions, or institutions” and “moderate, cautious.”
The Encarta Word English dictionary uses these definitions:
“in favor of preserving the status quo and traditional values and
customs, and against abrupt change”
“somebody who is reluctant to consider new ideas or accept change”
This is quite different from being pro-business but it nevertheless defined the Republican Party to a large extent during the period from the advent of the New Deal through the inauguration of Ronald Reagan. Republicans and conservatives on the Supreme Court strongly objected to the social and economic innovations of the New Deal (Roosevelt), The Fair Deal (Truman) and the Great Society (Johnson) and on the Court to the innovations the Warren Court, but they urged caution and tried to stop these innovations from coming into force. But they were true conservatives for the most part. Once a new innovation was enacted they accepted it. They weren’t anxious to undo that which had come to be accepted by the American people and the legal profession. Thus, the precedence of Griswold decided in 1965 and its finding of a right of privacy in the Constitution has never been under serious attack for the 40 years since it was first promulgated, though in recent years there has been an increasing minority in favor of “modifying” which probably means eviscerating, rather than outright overruling Roe vs. Wade.
But the new breed of Republican hardly fits the definition of a conservative whether on the court or off. Off the court whether one considers the invasion of Iraq wise or not, it most certainly cannot be described as “moderate, (or) cautious”. Nor can the drastic innovation of huge deficits and huge tax cuts be considered “moderate, (or) cautious” and given the long history of the Republican Party in favor of balanced budgets can this be considered a policy, “in favor of preserving the status quo and traditional values and customs, and against abrupt change”. Nor can the innovations proposed to privatize at least a portion of Social Security be considered to be, “in favor of preserving the status quo and traditional values and customs, and against abrupt change.”
On the court the three “conservative” Justices, have made it clear in their dissents that they are prepared to overturn many precedents with particular emphasis on the right of privacy but also in many of the areas of criminal law. Thus the term radicals would more aptly fit their philosophy, but in an America which by and large is conservative, in the true sense, that is not a label that anyone would willingly accept.
Many believe that a conservative is one who is reluctant to overturn precedent or to invalidate acts of an elected legislature, whether state or federal, but while that certainly is what we would expect from a “true” conservative, the present factions who call themselves, “conservatives” certainly don’t fit that description.
Other Areas That Could and Would be Changed
Since the present minority on the court, (which could become a majority with the investiture of Justice Roberts and the replacement of O’Connor with Miers and would certainly become a majority with the appointment of one more Justices) appears to be hostile to the decisions of the court during the period beginning with the first appointment to the court by Franklin D. Roosevelt, we can best begin to get a picture of the landscape we could be returning to, by looking at the cases that were decided during the preceding period, as well as by looking at the cases that were decided thereafter.
In 1905 the Supreme Court Declared unconstitutional a New York Act limiting the working hours of bakers, holding that such a law was an abridgment of the employers due process rights under the 14th Amendment. The court reasoned that even though states have the power to regulate the areas of health, safety, morals, and public welfare, the New York law in question was not within the limits of these “police powers” of the State. (Lochner v. New York, 198 U.S. 45 1905) [This decision was the beginning of a series of decisions that relied on the concept of “substantive due process in which the Court struck down a number of state laws that interfered with an individual’s economic and property rights. Even though this decision was overruled in 1917 in Bunting vs. Oregon 243 U.S. 426 (1917), it is not inconceivable that a court consisting of clones of Scalia and Thomas would return to the doctrine set forth in the Lochner case.
Even though the Bunting case might have suggested that the court had changed direction it soon became apparent that this was not the case when in 1918 The Supreme Court struck down a federal statute forbidding child labor (Hammer v. Dagenhart 247 U.S. 251 (1918)) and in 1923 the Court declared unconstitutional a minimum wage law for women on the grounds that it denied women freedom of contract. (Adkins v. Children’s Hospital 261 U.S. 525 (1923)
In 1936 the court struck down the National Industrial Recovery Act on the ground that it constituted an unconstitutional delegation of powers to the President. (Schechter Poultry Corp. v. United States 295 U.S. 495 (1935)) Such delegation of powers are now common in our complex economy and the President through various agencies is authorized to issue regulations that have the force of law and does so under the environmental, Food and Drug, and various labor and civil rights laws. Were we to have a President whose policies and priorities conflicted with those of the court, a return to the doctrine of this case is entirely feasible.
On the other hand the more recent cases that might be overturned, in addition to the cases based on the concept of privacy previously discussed, might be Gideon v. Wainwright 372 U.S. 335 (1963), which extended to the defendant the right of counsel in all state and federal criminal trials regardless of their ability to pay or Escobedo v. Illinois 378 U.S. 478 (1964), which ruled that a defendant must be allowed access to a lawyer before being questioned by police, or Miranda v. Arizona 384 U.S. 436 (1966) where the court ruled that those subjected to in-custody interrogation be advised of their constitutional right to an attorney and their right to remain silent.
Even more important are cases such as Mapp vs. Ohio 367 U.S. 643 (1961), which ruled that evidence obtained through an illegal search and seizure cannot be used in evidence. This is a case that has often been criticized as creating situations allowing some guilty defendants to escape justice. Without it, however, the 4th amendment (extended to the states by the 14th amendment) prohibition against ”unreasonable searches and seizures” becomes a nullity, for there is no other deterrent against a violation of this fundamental protection for all Americans. As it is, and even without a slew of new justices, it has already been narrowed to allow evidence to be introduced from illegal searches in certain cases, e.g. if the search though illegal, was made in good faith (US. v. Herring, 06-10795, 11th Circ 2007).
Other endangered cases that protect Americans against abuse by government power but which “conservatives have denounced as giving too many rights to the accused are Fay vs. Noia (372 US 391 1963), which holds that anyone held in custody in violation of the constitution is entitled to a writ of Habeas Corpus, In re Gault 387 U.S. 1 (1967), which held that juveniles are entitled to most of the procedural rights of adults and Jackson vs. Deno 378 US 368 (1964), which introduced procedures to prevent involuntary confessions at trial.
The area where a new court would most likely do the most extensive damage to our existing statutory scheme is where federal laws regulating the environment, conditions of labor, the regulation of guns, violence against women, and even Civil Rights legislation. This development has already been presaged by 5 to 4 decisions of the present court. For instance, in U.S. vs. Lopez 514 U.S. 549 (1995), the court struck down a law outlawing the possession of guns near schools in most cases. In U.S. v. Morrison 529 U.S. 598 (2000), the same 5-4 majority overturned a provision of the Violence Against Women Act empowering rape victims to file damage suits in federal court.
It should be kept in mind that when the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act's ban on discrimination in public accommodations, it accepted the government's argument that the law was a proper exercise of Congress' power over interstate commence. The relevant case was Heart of Atlanta Motel v. United States 379 U.S. 241 (1964), decided only a few months after passage of the Civil Rights Act. In that case the court upheld the application of the Civil Rights Act to an Atlanta motel that had refused to allow African-Americans to stay there. In doing so, the court noted that 75 percent of the Heart of Atlanta Motel's guests came from out of state, and that it was located near two interstate highways. If the court were to take a restrictive view of the commerce clause, which as I have indicated is a direction the present court has already undertaken, even laws banning discrimination in public accommodations would be endangered.
The Death of Justice Renquist
Many believe that the death of Justice Rehnquist and his replacement by someone holding the views of Justices Scalia or Thomas will not have a profound effect on the direction of the court. If we put the focus on “profound” this is undoubtedly true. However, even Rehnquist’s replacement could shift the court rightward, for a careful review of recent cases will show that even Rehnquist was less of an ideologue than Scalia or Thomas, and broke with those Justices on a number of important votes. For instance during the Supreme Court term that ended in June of 2003, Rehnquist voted with the majority in at least four cases in which Scalia and Thomas dissented. A replacement of Rehnquist by a clone of these Justices would, at least marginally, move the court further to the Right. At this point it is impossible to predict whether Roberts, or for that matter Miers, would be a clone of these sitting justices.
Conclusion
As important as the “Right to Choose’ is, it is a major mistake to put all the emphasis on this right in the context of the make-up of the Supreme Court. There are many other values, that are seriously endangered if the court were to be packed with Justices who analyze the Constitution in the way that Scalia and Thomas do, and one should never forget that President Bush has said that he wants justices in their image. Unless Democrats make major inroads in the Senate during the election of 2006 the future looks bleak indeed.
The Changing Court
The debate about the nomination of Harriet Miers, who is now the nominee to replace Justice O’Connor, which follows on the heels of Justice Roberts assuming the post of Chief justice is in the forefront of political discourse; as well it should be, because much is at stake. More than one could tell either from the media or from the interest groups on either side of the debate. Nor can one tell from the debate that there are legal issues involved and not just policy issues.
That is not to say that a judge’s political philosophy and even more important his/her approach to judicial interpretation are not relevant. They are! The difference between a judge who believes in a “living constitution” on the one hand, and one who believes in “original intent” or “strict constructionist” or “an activist judge” on the other, are enormous, but their meaning is often lost in political posturing both by the left and the right, though in my view much more so by the right.
Justice Stevens, one of the “liberal” members of the court, in an address before a Bar association explained the difference between interpreting the law and making policy. In referring to some conclusions he had reached, he explained that he believed that as a matter of policy that the outcomes were:
"unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator….”
In the controversial eminent domain case that allowed the "taking" of private homes for a commercial development in New London, Conn., he said that his decision was:
"entirely divorced from my judgment concerning the wisdom of the program.”
The constitution, in his view gave no basis for finding the conduct of the municipality to be unconstitutional.
Similarly, Justice O’Connor, while dissenting from an opinion of the court that declared the execution of anyone before the age of 18, said:
“Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18”.
Thus if we, and I don’t mean just lawyers, are to join the debate intelligently and not just in sound bites, we must start by reading the relevant portions of the constitution. For example, “A Women’s Right To Choose” may be good policy, but as a matter of Constitutional Law that is not enough. For it to have a constitutional basis we must find its foundation in the Constitution.
But to say that Judges do not necessarily vote for their preferred policy choices and do try to follow the law or the Constitution when handing down decisions is not to say that a judge’s judicial philosophy is not of paramount importance. But before I get into the proper interpretation of judicial philosophy let me begin by more fully exploring what is at stake.
What is at Stake
To listen to the debate one would think that the only thing that is at stake is the Right to an Abortion. As important as that issue is, there is far more at stake. To understand this we must begin by that analysis which lies at the heart of Constitutional interpretation. For example, in discussing Roe vs. Wade one must understand on what provision of the Constitution this decision was based on, and as it may seem, there are few articles in the media which discuss this, or even deem it to be relevant, although it is at the heart of the matter. (For those who wish to read the decision in full it can be found here.)
While the court in Roe vs. Wade refers to other sections of the Constitution it’s primary reliance is on the 9th amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Whether we are deemed to be Strict Constructionists, Originalists, Activists, Liberals or Conservatives, we must still look at the relevant language of the Constitution and if it is not clear we can look at its history. There is virtually no debate among lawyers and judges as to this being the correct way of interpreting any legal document.
With this in mind we look at the language. It is vague! But it is easier to understand if we look at its historic context. When the founders drafted the constitution it did not contain a Bill of Rights. Many opposed its approval on this ground, but others said an enumeration of rights might have the opposite effect of what was intended because it would be impossible to list all the rights that the people have. For that reason the 9th amendment was added to make it clear that the previous eight were not intended to be all-inclusive. At the same time it left open a plethora of uncertainty as to what other rights are to be implied. If none are to be implied then the amendment becomes a nullity. If any are to be implied, they must be found without specific mention in the constitution.
This is where the “Right to Privacy” comes into play and it was not first propounded in Roe vs. Wade. It was first mentioned as long ago as 1891 in Union Pacific R. Co. v. Botsford, 141 U.S. 250 at page 251. Its most important reference to the concept, however, was in Griswold v. Connecticut decided in 1965, and the issue was not whether a woman has a right to an abortion, but whether a law forbidding contraception stood constitutional muster. This was where the concept of privacy as being protected was enunciated most clearly and it formed the basis of that decision.
In 1981, Roberts referred to the "so-called right to privacy…." If he believes, as this might indicate, that there is no such right, and if he is not willing to defer to a precedent that has been reaffirmed by numerous decisions of the court over a period of forty years, (Stare decisis) then not only is the right to an abortion no longer protected, but neither is the right to practice contraception. Many other cases, including a recent one (Lawrence vs. Texas 539 U.S. 558 (2003), which relied more on the equal protection clause of the 14th amendment than on the 9th amendment striking down a Texas law that criminalized homosexual conduct, would be reversed.
Roe v. Wade
While I have said that much more is at stake than the right to abortion, so much controversy has been engendered by this case that a greater understanding than is now generally available appears to be in order. Most people, for instance believe that Roe vs. Wade made all laws that restrict abortion unconstitutional. That is a serious misunderstanding of the holding of the case. The court in its finding said:
“With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
The court then went on to a more specific guide, as follows:
(a) For the stage prior to approximately the end of the first trimester, thr abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The provision of (c), as could be expected, became a bone of contention in a later case where the court upheld a Texas requirement for tests to determine the viability of a fetus where in the doctor’s judgment the fetus was twenty or more weeks of gestational age. While this seems to have been a minor narrowing of the Roe holding, it was considered by many to presage a constant narrowing of the freedom given by Roe.
It is to be noted that the only time that the court allows so called abortion on demand is during the first trisemester. However, opponents argue that even (c) is in effect abortion on demand because they claim a doctor can always be found who will certify a danger to the health of the mother, even if that is only that her mental health will be endangered. More radical elements argue that even the life of the mother is irrelevant because we are simply exchanging one life for another, and they hold to the view of some religious groups, including the Catholic Church that life begins at conception. Most of these same groups also believe that contraception is a sin, which should be proscribed, though they mute this view, recognizing that its promulgation would hurt their abortion fight.
Looking at the court, as it is presently constituted, the addition of Roberts in place of Chief Justice Rehnquist is not likely to lead to an overthrow of Roe vs. Wade since Rehnquist was always opposed to the outcome in Roe. The only Justices now on the court who are committed to overturning the decision in Roe v. Wade are Justices Thomas and Scalia. Thus the replacement of Rehnquist by Roberts would still leave the present line-up intact. The replacement of Justice O’Connor, however, leaves an uncertain landscape because Justice Kennedy is considered to still be on the fence. Thus if O’Connor is replaced by an anti-choice stalwart, and it is not clear where Miers stands, we would have a 4 to 4 line-up with Justice Kennedy becoming the potential swing vote. On the more peripheral issues, however, which bear on how difficult it would be to have access to an abortion, where Justice O’Connor was frequently the swing vote, it is likely that the court would take a more restrictive view of abortion, even if it does not actually over rule Roe.
However, if Justice Stevens, who is now 85 years old, were to retire we would have a whole new court, which could, and probably would, eliminate the concept of privacy from the constitution and thereby reverse not only Roe vs. Wade, and the right to abortion, but Griswold and the right to contraception, and would reinstate laws criminalizing homo-sexual conduct. If these results seem frightening, they could very well be but the tip of the iceberg.
UNDERSTANDING “STRICT CONSTRUCTIONISM”
It is well to begin our discussion with “strict constructionism” because this was an issue that was debated at the dawn of our Constitution. It turned on the creation of the Bank of the United States, which was the brainchild of Alexander Hamilton. Its introduction in the Congress aroused a storm of controversy not only about its wisdom but more fundamentally about its constitutionality. One of its vocal opponents cried:
“This bank is unconstitutional! We have no power to grant a charter to any private corporation!” He went on to point out, “ that a power to grant charters of incorporation had been proposed in the General Convention and rejected.”
Hamilton’s supporters countered by invoking the doctrine of “implied powers.” They argued:
“If Congress may not make laws conformable to the powers plainly implied though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years labor is lost to the public… for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the Constitution.”
After Congress passed the bill by a vote of 39 to 20 Washington, who believed that the issue of Constitutionality was a Presidential responsibility, considered vetoing the bill on that ground. To help him reach a conclusion he asked for an opinion from his Attorney General, Edmund Randolph, who viewed it as unconstitutional. Still troubled he asked for opinions from Jefferson and Hamilton. Hamilton carried the day, arguing,
“That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power…”
Washington was convinced and signed the bill into law.
Subsequently, after the Supreme Court established its power to interpret the Constitution in the seminal case of Marbury vs. Madison in 1803, assuming a power that was not specifically granted in the Constitution, but which the court argued was implied and it upheld the formation of the bank in McCullough vs. Maryland in 1819.
Since then the number of times that various branches of government have departed from the strict language of the constitution are legion, but the debate has never entirely ended. However, it is difficult to imagine how the United States would have survived if “strict constructionism” had consistently been followed. It has during the course of history been invoked by whichever side believes that its political agenda is best served by this doctrine or alternatively is served by an interpretation of the constitution which interprets the language of this document in the light of conditions as they exist today. Under a strict interpretation, the power to criminalize the sale and possession of heroin, regulation of child labor, and of wages (the minimum wage and overtime pay) as well as Social Security, Medicare and Medicaid, to mention a few, would be in serious doubt.
UNDERSTANDING “ORIGINAL INTENT”
Original Intent is an even more difficult term to define and apply because it was not debated during the formative period of our Republic. It has, however, become an argument that runs parallel to Strict Constructionism. It’s basic tenet is that in interpreting the Constitution we may not take into account changing conditions in interpreting the Constitution but must be bound by the meaning as it was understood by its framers. The difficulty with this is that the constitution was deliberately left vague so as to satisfy various factions, each of whom would have had a different interpretation of the meaning of the language. In addition, as we have seen, Hamilton, one of the framers of the constitution, and the principal author along with Madison, of the Federalist papers, which was the main instrument in convincing the colonies the adopt the constitution, had an expansionist view of its language.
Furthermore, the constitution now has been amended 27 times. Can we look to the intent of the constitution as it was written or must we look to the intent of the amendments? For instance the fourteenth amendment states,”…; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” At the time it was enacted it was intended to protect the newly emancipated slaves, but it has since then been interpreted to make all ten amendments that constitute the Bill of Rights apply to the States. Original Intent? Probably not, but it does seem to fit into the category of Strict Interpretation, which makes it into an interesting paradox since the term Strict Interpretation and Original Intent are generally used by its proponents as though they were interchangeable. More problematic are the decisions regarding corporations, which in a series of cases beginning as early as 1866 found that corporations were persons within the meaning of the 14th amendment. I do not believe that this conclusion can be justified by any language found anywhere in the constitution. Certainly, the original intent of the 14th amendment was not to protect corporations, nor is there any language anywhere in the constitution that deals with this question. Nevertheless, the court reasoned that a corporation is nothing more than a collection of individuals and therefore has all the rights and immunities of individual persons. Of course corporations are not just a collection of individuals, as are partnerships. They have qualities that individuals do not possess, such as the protection from creditors of individual shareholders; they are also taxed differently from individuals and have economic power that could never be matched by individuals. But does this reasoning fit into either the doctrine of “original intent” or of “strict interpretation”? Yet proponents of those doctrines are not likely to strike them down.
Proponents of this doctrine, who generally want to overturn Roe vs. Wade and most likely Griswold, et al are also conscious that they must justify overturning a precedent of half a century duration. They have come up with the argument that the Dredd Scott decision, (Scott vs. Sanford 1857) is a perfect example of a decision that is so bad that no one could question the desirability of a reversal (They equate it with the decision in Roe vs. Wade which most can agree is a stretch) and they imply that it was, in fact reversed in due course. Its result was without question an affront to all anti-slavery forces, and even to those who sought compromise, but it was not reversed. It was overturned after the Civil War by the 14th amendment.
More important, however, is that under the doctrine of original intent, it was most likely a correct decision. When the Constitution was written both slavery and involuntary servitude were accepted not only in the southern states, but in many northern states as well. While the constitution never uses the word slavery or servitude, its reference to “free persons and 3/5th of all other persons” is clearly a reference to the existence of slaves whose number are to be used for apportionment purposes. Furthermore, even those who abhorred slavery, did not at the time the Constitution was drafted and adopted, envisioned someone of African descent as a citizen, or of having rights such as those held by whites. While by the time of the Dredd Scott decision opinion had changed, particularly in the North, and if the court had taken cognizance of this change in popular opinion, the decision might well have been drastically different. Under the doctrine of “Original Intent,” however, the decision was probably correct. Proponents of “Original Intent,” of course, cannot admit this or their approach would be rejected by the vast majority of Americans. Both “Original Intent” and “Strict Interpretation” if applied consistently would destroy our whole edifice of juridical history and put the U.S. into the 19th and to some extent into the 18th century.
Without the concept of a Living Constitution, and the concept of “evolving standards of decency” which the Supreme Court has relied on, we might still allow corporal punishment, such as branding and whipping.
Understanding the Meaning of Activist Judges
As far as I know no one has ever tried to define this word. It has generally been used as a word of deprecation to define those judges who believe in a living constitution or who interpret the Constitution in the light of existing conditions or create new rights for the American people, such as the right to contraception. Though, as has been shown in relationship to declaring corporations to be persons, albeit artificial ones, judges who normally hold to a so-called strict interpretation are quite capable of deviating from this standard when there values require it.
It seems much more logical, however, to define activist as a judge who does not hesitate to strike down Acts of Congress. Using this standard, we find that it applies more frequently to judges who are considered to be “conservative” rather than to those deemed “liberal.” Using this standard we find the opposite of what most people might assume. It turns out that by this standard Justice Thomas is the most activist judge and Justice Breyer, a judge generally grouped among the liberal four is the least activist. In fact it appears that the Justices presently on the court have during the years that they have been together on the court i.e. 1994, have struck down Acts of Congress as being unconstitutional in the percentages shown below:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
It is evident from this that there is a correlation between being liberal and deferring to our elected representatives, which is the opposite to what we have been led to believe by a barrage of disaffected right wing zealots, who denounce the court whenever it does not rule in accordance with its dictates.
Understanding the Meaning of a Liberal Judge
For most of the decade between the advent of the New Deal of Franklin D. Roosevelt until the rise of the new Right with the election of Ronald Reagan, liberal was a term that was associated with the programs known as the New Deal, which was generally popular and the term was probably embraced by most, who supported the tenants of that program. The term has now fallen out of favor to a large extent because it has been denigrated by those who generally would like to see these social programs dismantled. It most likely also lost its glitter because of its association with many of the excesses of the ’60s. Republican and right wing activists invariably use it as a pejorative term.
Franklin’s Merriam Webster’s electronic dictionary defines liberal as “generous,” “not narrow in opinion or judgment” “tolerant.”
The Encarta Word English dictionary uses these definitions:
1. tolerant of different views and standards of behavior in others
2. favoring gradual reform, especially political reforms that extend democracy, distribute wealth more evenly, and protect the personal freedom of the individual
3. generous with money, time, or some other asset
5. not limited to the literal meaning in translation or interpretation
6. concerned with general cultural matters and broadening of the mind rather than professional or technical study
7. relating to a political ideology of liberalism
8. somebody who favors tolerance or reform
Given these accepted meanings it is hard to understand why the term has fallen out of favor. In political terms, I believe that the definitions of Encarta in 1 and 2 probably best describe its philosophy.
In terms of the Justices of the court, Justices Souter, Stevens, Ginsburg and Breyer are generally described as liberal. They appear to fit not only definition 1 and 2, but as a matter of constitutional interpretation fit the definition of (5), for which they are often criticized, but they would maintain that given the nature of the Constitution, this has not only been a desirable means of interpretation since the early days of the Republic, but has been an absolutely necessary one. They are often accused of making law rather than interpreting it, but as we have seen, other methods of interpretation have not historically been possible. Conservatives have as often placed their own worldview on the Constitution as liberals, e.g. finding corporations to be persons, or enunciating doctrines, as exemplified in the Dredd Scott decision.
Understanding the Meaning of a Comservative Judge
For most of the period since the New Deal and even long before, a conservative was generally considered as one who was pro-business. Conservativism in this sense was deeply ingrained in the Republican Party. For Instance, Calvin Coolidge, The Republican President in the 20s famously said, “The business of America is business." (January 17, 1925) And Dwight Eisenhower’ Secretary of Defense, Charlie Wilson, said, “What is good for General Motors is good for America.” This however is not the dictionary definition of a conservative.
Franklin’s Merriam Webster’s electronic dictionary defines the term as, ”disposed to maintain existing views, conditions, or institutions” and “moderate, cautious.”
The Encarta Word English dictionary uses these definitions:
“in favor of preserving the status quo and traditional values and
customs, and against abrupt change”
“somebody who is reluctant to consider new ideas or accept change”
This is quite different from being pro-business but it nevertheless defined the Republican Party to a large extent during the period from the advent of the New Deal through the inauguration of Ronald Reagan. Republicans and conservatives on the Supreme Court strongly objected to the social and economic innovations of the New Deal (Roosevelt), The Fair Deal (Truman) and the Great Society (Johnson) and on the Court to the innovations the Warren Court, but they urged caution and tried to stop these innovations from coming into force. But they were true conservatives for the most part. Once a new innovation was enacted they accepted it. They weren’t anxious to undo that which had come to be accepted by the American people and the legal profession. Thus, the precedence of Griswold decided in 1965 and its finding of a right of privacy in the Constitution has never been under serious attack for the 40 years since it was first promulgated, though in recent years there has been an increasing minority in favor of “modifying” which probably means eviscerating, rather than outright overruling Roe vs. Wade.
But the new breed of Republican hardly fits the definition of a conservative whether on the court or off. Off the court whether one considers the invasion of Iraq wise or not, it most certainly cannot be described as “moderate, (or) cautious”. Nor can the drastic innovation of huge deficits and huge tax cuts be considered “moderate, (or) cautious” and given the long history of the Republican Party in favor of balanced budgets can this be considered a policy, “in favor of preserving the status quo and traditional values and customs, and against abrupt change”. Nor can the innovations proposed to privatize at least a portion of Social Security be considered to be, “in favor of preserving the status quo and traditional values and customs, and against abrupt change.”
On the court the three “conservative” Justices, have made it clear in their dissents that they are prepared to overturn many precedents with particular emphasis on the right of privacy but also in many of the areas of criminal law. Thus the term radicals would more aptly fit their philosophy, but in an America which by and large is conservative, in the true sense, that is not a label that anyone would willingly accept.
Many believe that a conservative is one who is reluctant to overturn precedent or to invalidate acts of an elected legislature, whether state or federal, but while that certainly is what we would expect from a “true” conservative, the present factions who call themselves, “conservatives” certainly don’t fit that description.
Other Areas That Could and Would be Changed
Since the present minority on the court, (which could become a majority with the investiture of Justice Roberts and the replacement of O’Connor with Miers and would certainly become a majority with the appointment of one more Justices) appears to be hostile to the decisions of the court during the period beginning with the first appointment to the court by Franklin D. Roosevelt, we can best begin to get a picture of the landscape we could be returning to, by looking at the cases that were decided during the preceding period, as well as by looking at the cases that were decided thereafter.
In 1905 the Supreme Court Declared unconstitutional a New York Act limiting the working hours of bakers, holding that such a law was an abridgment of the employers due process rights under the 14th Amendment. The court reasoned that even though states have the power to regulate the areas of health, safety, morals, and public welfare, the New York law in question was not within the limits of these “police powers” of the State. (Lochner v. New York, 198 U.S. 45 1905) [This decision was the beginning of a series of decisions that relied on the concept of “substantive due process in which the Court struck down a number of state laws that interfered with an individual’s economic and property rights. Even though this decision was overruled in 1917 in Bunting vs. Oregon 243 U.S. 426 (1917), it is not inconceivable that a court consisting of clones of Scalia and Thomas would return to the doctrine set forth in the Lochner case.
Even though the Bunting case might have suggested that the court had changed direction it soon became apparent that this was not the case when in 1918 The Supreme Court struck down a federal statute forbidding child labor (Hammer v. Dagenhart 247 U.S. 251 (1918)) and in 1923 the Court declared unconstitutional a minimum wage law for women on the grounds that it denied women freedom of contract. (Adkins v. Children’s Hospital 261 U.S. 525 (1923)
In 1936 the court struck down the National Industrial Recovery Act on the ground that it constituted an unconstitutional delegation of powers to the President. (Schechter Poultry Corp. v. United States 295 U.S. 495 (1935)) Such delegation of powers are now common in our complex economy and the President through various agencies is authorized to issue regulations that have the force of law and does so under the environmental, Food and Drug, and various labor and civil rights laws. Were we to have a President whose policies and priorities conflicted with those of the court, a return to the doctrine of this case is entirely feasible.
On the other hand the more recent cases that might be overturned, in addition to the cases based on the concept of privacy previously discussed, might be Gideon v. Wainwright 372 U.S. 335 (1963), which extended to the defendant the right of counsel in all state and federal criminal trials regardless of their ability to pay or Escobedo v. Illinois 378 U.S. 478 (1964), which ruled that a defendant must be allowed access to a lawyer before being questioned by police, or Miranda v. Arizona 384 U.S. 436 (1966) where the court ruled that those subjected to in-custody interrogation be advised of their constitutional right to an attorney and their right to remain silent.
Even more important are cases such as Mapp vs. Ohio 367 U.S. 643 (1961), which ruled that evidence obtained through an illegal search and seizure cannot be used in evidence. This is a case that has often been criticized as creating situations allowing some guilty defendants to escape justice. Without it, however, the 4th amendment (extended to the states by the 14th amendment) prohibition against ”unreasonable searches and seizures” becomes a nullity, for there is no other deterrent against a violation of this fundamental protection for all Americans. As it is, and even without a slew of new justices, it has already been narrowed to allow evidence to be introduced from illegal searches in certain cases, e.g. if the search though illegal, was made in good faith (US. v. Herring, 06-10795, 11th Circ 2007).
Other endangered cases that protect Americans against abuse by government power but which “conservatives have denounced as giving too many rights to the accused are Fay vs. Noia (372 US 391 1963), which holds that anyone held in custody in violation of the constitution is entitled to a writ of Habeas Corpus, In re Gault 387 U.S. 1 (1967), which held that juveniles are entitled to most of the procedural rights of adults and Jackson vs. Deno 378 US 368 (1964), which introduced procedures to prevent involuntary confessions at trial.
The area where a new court would most likely do the most extensive damage to our existing statutory scheme is where federal laws regulating the environment, conditions of labor, the regulation of guns, violence against women, and even Civil Rights legislation. This development has already been presaged by 5 to 4 decisions of the present court. For instance, in U.S. vs. Lopez 514 U.S. 549 (1995), the court struck down a law outlawing the possession of guns near schools in most cases. In U.S. v. Morrison 529 U.S. 598 (2000), the same 5-4 majority overturned a provision of the Violence Against Women Act empowering rape victims to file damage suits in federal court.
It should be kept in mind that when the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act's ban on discrimination in public accommodations, it accepted the government's argument that the law was a proper exercise of Congress' power over interstate commence. The relevant case was Heart of Atlanta Motel v. United States 379 U.S. 241 (1964), decided only a few months after passage of the Civil Rights Act. In that case the court upheld the application of the Civil Rights Act to an Atlanta motel that had refused to allow African-Americans to stay there. In doing so, the court noted that 75 percent of the Heart of Atlanta Motel's guests came from out of state, and that it was located near two interstate highways. If the court were to take a restrictive view of the commerce clause, which as I have indicated is a direction the present court has already undertaken, even laws banning discrimination in public accommodations would be endangered.
The Death of Justice Renquist
Many believe that the death of Justice Rehnquist and his replacement by someone holding the views of Justices Scalia or Thomas will not have a profound effect on the direction of the court. If we put the focus on “profound” this is undoubtedly true. However, even Rehnquist’s replacement could shift the court rightward, for a careful review of recent cases will show that even Rehnquist was less of an ideologue than Scalia or Thomas, and broke with those Justices on a number of important votes. For instance during the Supreme Court term that ended in June of 2003, Rehnquist voted with the majority in at least four cases in which Scalia and Thomas dissented. A replacement of Rehnquist by a clone of these Justices would, at least marginally, move the court further to the Right. At this point it is impossible to predict whether Roberts, or for that matter Miers, would be a clone of these sitting justices.
Conclusion
As important as the “Right to Choose’ is, it is a major mistake to put all the emphasis on this right in the context of the make-up of the Supreme Court. There are many other values, that are seriously endangered if the court were to be packed with Justices who analyze the Constitution in the way that Scalia and Thomas do, and one should never forget that President Bush has said that he wants justices in their image. Unless Democrats make major inroads in the Senate during the election of 2006 the future looks bleak indeed.
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