New York Times
October 18, 2004
Imagining America if George Bush Chose the Supreme Court
By ADAM COHEN
Abortion might be a crime in most states. Gay people could be thrown
in prison for having sex in their homes. States might be free to
become mini-theocracies, endorsing Christianity and using tax money to
help spread the gospel. The Constitution might no longer protect
inmates from being brutalized by prison guards. Family and medical
leave and environmental protections could disappear.
It hardly sounds like a winning platform, and of course President Bush
isn't openly espousing these positions. But he did say in his last
campaign that his favorite Supreme Court justices were Antonin Scalia
and Clarence Thomas, and the nominations he has made to the lower
courts bear that out. Justices Scalia and Thomas are often called
"conservative," but that does not begin to capture their philosophies.
Both vehemently reject many of the core tenets of modern
constitutional law.
For years, Justices Scalia and Thomas have been lobbing their judicial
Molotov cocktails from the sidelines, while the court proceeded on its
moderate-conservative path. But given the ages and inclinations of the
current justices, it is quite possible that if Mr. Bush is re-elected,
he will get three appointments, enough to forge a new majority that
would turn the extreme Scalia-Thomas worldview into the law of the
land.
There is every reason to believe Roe v. Wade would quickly be
overturned. Mr. Bush ducked a question about his views on Roe in the
third debate. But he sent his base a coded message in the second
debate, with an odd reference to the Dred Scott case. Dred Scott, an
1857 decision upholding slavery, is rarely mentioned today, except in
right-wing legal circles, where it is often likened to Roe.
(Anti-abortion theorists say that the court refused to see blacks as
human in Dred Scott and that the same thing happened to fetuses in
Roe.) For more than a decade, Justices Scalia and Thomas have urged
their colleagues to reverse Roe and "get out of this area, where we
have no right to be."
If Roe is lost, the Center for Reproductive Rights warns, there's a
good chance that 30 states, home to more than 70 million women, will
outlaw abortions within a year; some states may take only weeks.
Criminalization will sweep well beyond the Bible Belt: Ohio could be
among the first to drive young women to back-alley abortions and
prosecute doctors.
If Justices Scalia and Thomas become the Constitution's final
arbiters, the rights of racial minorities, gay people and the poor
will be rolled back considerably. Both men dissented from the Supreme
Court's narrow ruling upholding the University of Michigan's
affirmative-action program, and appear eager to dismantle a wide array
of diversity programs. When the court struck down Texas' "Homosexual
Conduct" law last year, holding that the police violated John
Lawrence's right to liberty when they raided his home and arrested him
for having sex there, Justices Scalia and Thomas sided with the
police.
They were just as indifferent to the plight of "M.L.B.," a poor mother
of two from Mississippi. When her parental rights were terminated, she
wanted to appeal, but Mississippi would not let her because she could
not afford a court fee of $2,352.36. The Supreme Court held that she
had a constitutional right to appeal. But Justices Scalia and Thomas
dissented, arguing that if M.L.B. didn't have the money, her children
would have to be put up for adoption.
That sort of cruelty is a theme running through many Scalia-Thomas
opinions. A Louisiana inmate sued after he was shackled and then
punched and kicked by two prison guards while a supervisor looked on.
The court ruled that the beating, which left the inmate with a swollen
face, loosened teeth and a cracked dental plate, violated the
prohibition of cruel and unusual punishment. But Justices Scalia and
Thomas insisted that the Eighth Amendment was not violated by the
"insignificant" harm the inmate suffered.
This year, the court heard the case of a man with a court appearance
in rural Tennessee who was forced to either crawl out of his
wheelchair and up to the second floor or be carried up by court
officers he worried would drop him. The man crawled up once, but when
he refused to do it again, he was arrested. The court ruled that
Tennessee violated the Americans With Disabilities Act by not
providing an accessible courtroom, but Justices Scalia and Thomas said
it didn't have to.
A Scalia-Thomas court would dismantle the wall between church and
state. Justice Thomas gave an indication of just how much in his
opinion in a case upholding Ohio's school voucher program. He
suggested, despite many Supreme Court rulings to the contrary, that
the First Amendment prohibition on establishing a religion may not
apply to the states. If it doesn't, the states could adopt particular
religions, and use tax money to proselytize for them. Justices Scalia
and Thomas have also argued against basic rights of criminal suspects,
like the Miranda warning about the right to remain silent.
President Bush claims to want judges who will apply law, not make it.
But Justices Scalia and Thomas are judicial activists, eager to use
the fast-expanding federalism doctrine to strike down laws that
protect people's rights. Last year, they dissented from a decision
upholding the Family and Medical Leave Act, which guarantees most
workers up to 12 weeks of unpaid leave to care for a loved one. They
said Congress did not have that power. They have expressed a desire to
strike down air pollution and campaign finance laws for similar
reasons.
Neither President Bush nor John Kerry has said much about Supreme
Court nominations, wary of any issue whose impact on undecided voters
cannot be readily predicted. But voters have to think about the
Supreme Court. If President Bush gets the chance to name three young
justices who share the views of Justices Scalia and Thomas, it could
fundamentally change America for decades.
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