I can't say I was suprised by what happened today. I thought the rumors of just being 2 or 4 votes away from sustaining a fillibuster over the weekend sounded too good to be true. I'm still hoping against hope that eiter Roberts or Alito might suprise us in some ways. Few people remember that Roe v. Wade was authored by Harry Blackmun, a Nixon appointee who went from certified conservative to a consistent liberal vote. His views shifted so much, that his lifelong friendship with Chief Justice Warren Burger was affected. Is it possible that Alito or Roberts could "evolve" in this way? I doubt it, but there's always hope.
What today should tell everyone is that winning elections is the most important thing, if you don't want people like Alito running the courts in this country. This "I'm going to get my ball & go home" bullshit isn't the way. It's the same kind of thinking that got us into the mess in the first place. Remember those Nader protest votes back in 2000, because there was no difference between a Gore & Bush Presidency?
...Anyways, there are
remedies to a Neo-Con court. If the Roberts court decides to gut
"Roe" or other long held precedents, there are ways to counter it but only if we build majorities in Congress & have a Democratic president. There are 2 basic options:
- Strip The Court Of Jurisdiction - Per Ex Parte McCardle, the Supreme Court & the Federal courts in general can be stripped of their appelate jurisdiction by an act of congress. The Republicans have already tried to do this with proposals for flag burning and with a proposed idea to strip "birthright" citizenship from the children of illegal aliens. A Democratic Congress, with a Democratic President, could strip the court of its jurisdiction if they felt it was out of line.
- Add More Judges - There's nothing that says there has to be 9 Supreme Court Justices. The number can be changed by act of congress. Over the history of the court, configurations of 6, 7, 9, and 10 have been used. If the Robert-Alito-Scalia-Thomas conservative alliance got too out of hand, a democratic administration & Congress could add 2 more seats. Since the Republicans have so nicely given us the idea of the "Nuclear Option", it could be used by Democrats to stop any attempted fillibuster by them. Roosevelt failed to do something similar back in the 1930s, but the threat of it got the court to "rethink" their rulings of the constitutionality of his programs.
After that little bit of
"pie in the sky" thinking, how about a question? What are the
best & worst decisions in the courts history? I'm sure most conservatives would say "Roe", but there might be a few liberals too. There have been liberal legal scholars who've argued that the result in "Roe" is right, but it used poor legal reasoning that is part of the reason conservatives have been able to attack it. I would point to
Bush v. Gore as a case that just galls me still today. The fact that the justices that have done their best to destroy the equal protection clause would use it to protect how you count identations on a piece cardboard, is still priceless. This is mostly the same court members who've argued that the equal protection act doesn't protect someone from differing standards in the jury process to execute them, or from possible racial discrimination when executing them (
McCleskey v. Kemp).
Here's my best & worst...
BEST
Brown v. Board Of Education - The 14th Amendment is probably the most important of any of the ammendments to the constitution. It defines citizenship, and requires due process & equal protection. In this decision, the court righted the wrongs of Plessy v. Ferguson & Dred Scott v. Sanford. It's also a case of someone showing how they can change. Chief Justice Earl Warren had overseen & supported the internment of Japanese-Americans when he was the Attorney-General of California. His appointment as Chief Justice was seen at the time as a dark sign for desegregation, but he proved them wrong.
WORST
Korematsu v. United States - The reason I picked this case over the likes of "Plessy" & "Dred Scott" is because it's still standing precedent, sinces its underlying reasoning has NEVER been overturned, and has implications in eavesdropping & other "War On Terror" issues. This case upheld the internment of Japanese-Americans & asserted that civil rights can be stepped on in the name of national security. Japanese-Americans due process & equal protection rights were withdrawn because, in the words of Hugo Black's majority opinion...
...All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
Justice Frank Murphy dissented, calling the majority's decision legalized
"racism". Hopefully we won't have any decision this bad coming in our future...