It is with some trepidation that I embark on this, as I am NOT trolling, inflammatory title notwithstanding. I am trying to seriously present an idea that I know will not be popular here, but which I think is an important one (although I have not originated it).
I, for one, am tired of defending the Supreme Court. This inherently conservative institution is not on our side. In defending the Court, and the few glimmers of progress, we expend an enormous amount of political capital. We provide a foil that can be thrown up against us. We foster rights-based complacency on our side, and give the reactionaries a rallying point. We have, in my view, reached a point where a reactionary Court would be better for us progressives than a conservative one.
What do we lose by turning the Court over to reactionaries? Armando gave a summary several days ago
here of the conservative agenda:
(1) Overturn Roe v. Wade, destroying a women's right to choose. To be followed by a federal law banning all abortions.
(2) Eviscerate the separation of church and state. To be followed by continued attacks on science and the imposition of the teaching of one belief system in the classroom. Creationism as science.
(3) Strip existing legal protections of the environment through judicially activist interpretations of federal law.
(4) Eliminate workers and union rights.
(5) Weaken civil rights protections through outlandish and unfounded readings of the Constitution and federal civil rights laws. End affirmative action, shred employment discrimination laws. Legalize discrimination against gays.
This is a fine summary of the reactionary agenda, and I will use it to structure my discussion (at the risk of looking like I am picking on Armando, which I am not). The Court, however, cannot by itself implement this agenda-the Court can only remove constitutional impediments to it. Our fight would continue for every one of the rights we cherish regardless of whether they are labeled "constitutional" or just important.
So, what would we lose? It is tricky to predict the extent to which the Court's individual members will overturn precedent, as opposed to suddenly feeling the weight of their constitutional responsibilities, but it wouldn't be worth discussing this without positing the worst case.
Certainly, the constitutional "right to privacy" is at the top of the list. In fact, I would say that it drives most of the conservative, anti-court rhetoric. So, assume we lose Roe v. Wade, and abortion can be made illegal. We also lose Lawrence v. Texas, the 2003 consensual sodomy case. For logical consistency, we'd also lose Griswold v. Connecticut, the contraception case. (We might also lose that case about the police officer who wore his hair too long, although the cite escapes me and I'm not really worried about that issue so much.)
How much of a loss is this? I'll start by saying that I agree with each of these decisions both in logic and in result, and I would also vote for any legislation that enacted the result. Abortion should be legal, contraception should be available, and consensual sodomy should be something that should be legal to practice in the comfort of one's home. But I don't think we need to wed ourselves to the COURT CASES.
What happens if Roe v. Wade is overturned? Take a look at this Chart: Classification and year of abortion legalization before Roe v. Wade, by state. Seven states had repealed abortion laws between 1969 and 1972 (Roe was decided in 1973). Another 14 had reformed their laws between 1968 and 1971. This is a fight that we were slowly winning, in my view, even without Roe. At the moment, I think it is a fight we are losing - we have half-hearted courts, a disengaged set of quasi-conservatives (because they get their abortions AND their tax cut), and nutballs shooting doctors to the extent that abortions are frequently unavailable anyway. Perhaps, returning this issue to the political process might work to our long term advantage.
Let's go to contraception. Well, in my state, contraception will not become illegal just because the Supreme Court changes hands. And I suspect that this is a fight we should WANT. Please, let Congress start a serious challenge to contraception. We're doing quite well with the pharmacist issue, in my view. In my state, at least, the Supreme Court is not the last bulwark against contraception. Rather, it allows numerous people to pretend they are conservative, without having to stand up for a "right" they exercise every day.
And then we have consensual sodomy, which is really a proxy battle over gay rights (since straight people seem to be immune from prosecution). Well, Lawrence only recently overturned the 17-year old decision in Bowers v. Hardwick. What happened to gay rights between 1986 and 2003? Did the lack of a "right" to practice consensual sodomy actually hurt the movement? I would suggest the opposite. Gay Pride day in New York City has done far more for gay rights than any ruling by the Supreme Court (hasn't been too bad for AFA fundraising either, but that's a different story). In short, I think in the long run, personal privacy on sexual issues is a battle that we can and will win. Bring it on (no, really, I can say that with mucho machismo, so it sounds convincing).
Armando (whose list I am using simply because I agree with it) also lists decisions that would "strip existing legal protections of the environment through judicially activist interpretations of federal law." True enough, but those environmental protections were never of constitutional dimension. They were enacted by a simple majority of the people's representatives. In other words, we would have to convince the people that we, and not the corporate masters, represent them. In the short term, we lose some existing protections; we risk a Bhopal. But, currently we suffer the drip, drip, drip of fighting a rear-guard action by having unsympathetic courts narrow the existing rules bit by bit over time. We get no new legislation to address new problems, just slighly narrower versions of what we had last year. The environmental advances have been at the state level, and have been legislative, not judicial.
The reactionaries surely would try to "eviscerate the separation of church and state," and then attack science and try to reintroduce creationism. But, this worries me less than all the others. Americans as a group are getting LESS religious. But there is broad consensus about freedom of religion - requiring Americans to get off their duff and personally fend off absurd laws (in response to the religious right) would not be a bad thing. Why should we allow a reluctant court to drive freedom of religion? It's not like they are ever going to take "In God We Trust" off the county office building. I don't think that we're helped by the very fine line drawing of current constitutional jurisprudence. We'd be better off if we had to fight these issues on the ground. How about if we take on the "prayer in school" issue by making it truly inclusive (Buddhist Monday, Atheist Tuesday, free range prayer on Wednesday)?
As an aside, in my neighborhood, school prayer would be darned unusual, if everyone got to speak their piece (the folks next door are Buddhist, we are very liberal christians, the folks across the street are christians from a sect from India, there is an Asian guy down the street who practices Tai Chi on his front lawn on every clear morning, there's some catholic folks a few doors down, and everyone else worships Mammon. I'm sure the atheists are represented, but they don't have an observable practice, and I can't separate them from the Mammonites. Welcome to the 'burbs).
Next, we have "[e]liminate workers and union rights." OK, but with our current system, the unions are dying and we'll all be working at Wall Mart in 10 years for the current equivalent of 75 cents an hour. And that's if the Supreme Court DOESN'T change anything. Those workers rights were put in place by a majority of the people at a time when folks were fired up about it. Why hide behind the skirts of the Supreme Court? CEO pay is astronomical, particularly in comparison to the average salary (a gap that is only growing). Maybe a few obnoxious decisions would help us.
The final item on Armando's list, is that the Court would "[w]eaken civil rights protections through outlandish and unfounded readings of the Constitution and federal civil rights laws," "end affirmative action," and "shred employment discrimination laws." OK. Here's the thing. Nobody will admit to engaging in affirmative action, these days. Really, it's dying all by itself. If you want to revive it, I say again, hiding behind the court is not a good approach. They are slowly, slowly narrowing it anyway. As for employment discrimination laws, I see them tinkering with lawsuit issues, such as the availability of damages.
In my view, the activist Court was absolutely necessary in the 1950's and 1960's, but primarily useful for breaking the back of segregation. The Court was essential in opening the political process. Our political victories, however, seem now to be attributed to the Court, not to liberal action. And the Court isn't such a good guardian.
In my view, the Court is an anchor. It may keep us from drifting backward, but we also cannot sail with it. At best, we sit in place while the ship rots.