God Save This Vulnerable Court
http://www.forward.com/articles/7198
Forward - New York,NY,USA

Forward Forum
God Save This Vulnerable Court
By Erwin Chemerinsky
January 13, 2006

The Senate should reject Samuel Alito's nomination to the Supreme Court
because of his almost certain impact in undermining basic constitutional
protections. It is impossible to overstate the importance of this
nomination for the immediate future of constitutional law in the United
States.

Often in considering judicial nominees, the Senate can take refuge in doubt
over the impact of a particular nominee. In considering the nomination of
Alito, however, there is no doubt as to the importance of this seat on the
Supreme Court or as to his likely impact on the law.

For almost two decades, the Supreme Court has been frequently referred to
as the "O'Connor Court" because of the pivotal role played by Justice
Sandra Day O'Connor in virtually every aspect of constitutional law. In
almost every major area — campaign finance regulation, death penalty
litigation, racial justice, reproductive freedom, separation of church and
state — O'Connor was in the majority in 5-4 decisions. Replacing her thus
has the possibility of dramatically changing the law in some of the most
important and controversial areas of contemporary constitutional law.

The Senate thus must assess O'Connor's prospective replacement in terms of
his likely impact on constitutional law. Unlike many nominees in American
history, Alito has a long written record, one that provides clear
indication of his views and what he is likely to do if confirmed to the
Supreme Court — and the contrast between Samuel Alito and Sandra Day
O'Connor is stark.

What will his presence on the Supreme Court mean?

Justice O'Connor was a key fifth vote in enforcing a wall separating church
and state, such as in the 5-4 decision last spring to declare
unconstitutional a county in Kentucky placing the Ten Commandments on
government property. In contrast, Alito repeatedly has voted against such
limits on government power, such as in opinions permitting
student-delivered prayers at public school graduations and in allowing
religious symbols on government property. Alito likely would be a fifth
vote on the court to dramatically change the law of the Establishment
Clause to allow far more government aid to religion and far more religious
involvement in government.

Alito also is a certain vote to limit abortion rights and when the occasion
arises, to overrule Roe v. Wade. As a lawyer in the Justice Department in
the 1980s, Alito wrote a series of memos saying that Roe v. Wade was
wrongly decided and urging a strategy to have it overruled.

As an appellate judge, Alito has consistently voted against protecting
abortion rights, including writing an opinion, which the Supreme Court
overturned, to allow a state to require a married woman to obtain her
husband's consent before receiving an abortion. More generally, Alito is a
vote to greatly narrow privacy rights, as evidenced by a dissent he wrote
arguing that the police should not be held liable when they strip-searched
a woman and her 10-year-old daughter who were present at a house being
searched.

Racial justice is another area where replacing O'Connor with Alito will
have a dramatic impact. In 2003, O'Connor wrote the majority opinion in a
5-4 decision holding that colleges and universities have a compelling
interest in having a diverse student body and thus may use race as one
factor in admissions decisions to benefit minorities. In applying for a
high-level position in the Justice Department, Alito expressed his strong
opposition to affirmative action and as a federal appellate judge has
consistently voted to limit remedies for racial discrimination.

Perhaps no area of constitutional law will be more important in the years
ahead than limits on executive power, as the Supreme Court will review the
unprecedented claims of authority by the Bush administration as part of the
war on terrorism. In recent years, the Bush administration has claimed the
authority to detain American citizens apprehended in the United States as
enemy combatants; the power to engage in warrantless eavesdropping of
conversations and electronic communications by American citizens with those
in foreign countries; the ability to detain enemy combatants indefinitely
in Guantanamo, Cuba, without due process; and the power to authorize
torture of individuals. These will be among the most significant issues to
come before the court over the next few years.

O'Connor wrote a key opinion in 2004 holding that the government must
provide due process to American citizens held as enemy combatants. She
declared that even "a state of war is not a blank check for the president
when it comes to the rights of the nation's citizens."

Alito, by contrast, took the position in the 1980s that the attorney
general should have absolute immunity to liability for authorizing illegal,
warrantless wiretapping. In fact, in a series of writings and speeches over
20 years, Alito has advocated expansive, largely unchecked executive
authority.

In Alito, President Bush picked a nominee whose views reflect the most
conservative quarter of the American population. Adding him to a court that
already has so many conservative justices will usher in a new era of
constitutional law that likely will last for decades.

As the Senate considers Alito's nomination over the next few weeks,
conservatives will try to pretend it is otherwise, and present him as a
moderate. But that is not Samuel Alito — and conservatives, who were
gleeful over his nomination, know it.

Erwin Chemerinsky is a professor of law and political science at Duke
University.

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Posting and reading from alt.politics.usa.constitution OR alt.education

You are invited to check out the following:

The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm

American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm

The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html

[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]

HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/

[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]

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. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
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