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EDITORIAL OBSERVER
Imagining America if George Bush Chose the Supreme
Court
By ADAM COHEN
Published: October 18, 2004
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.
"Children learn what they live"
