Imagining America if George Bush Chose the Supreme Court

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Tue, 19 Oct 2004 12:04:12 EDT

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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.

 

Copyright 2004 The New York Times Company