The Scales of Justice

One more vote. That's all the conservatives need to tip the scales of justice for decades to come.

And it's a promise that John McCain has made to the right wing of the Republican Party to garner their vote. McCain has identified the type of Justice he would choose, if elected, as someone who shares the judicial disposition of Justices Roberts and Alito. For those who know the partisan conservative mentality of those men, nothing more needs to be said to understand the impact of such a selection.

This essay is a follow up to my post on Jeffrey Toobin's book about Supreme Court, The Nine. It's an issue that needs to be emphasized as often as possible. See The Next Justice.

Toobin recently wrote about McCain's intentions in a New Yorker Comment, In McCain’s Court. As he noted, McCain was oblique in expressing his views, except for those extremists who carefully pay attention to such matters, who would understand the meaning and importance of his words. Toobin observed:

Successful politicians know how to attract attention, and how to avoid it, so it’s worth noting that John McCain chose to give his speech about the future of the judiciary on May 6th, a day when the political world was preoccupied with the Democratic primaries in Indiana and North Carolina. It is significant, too, that Senator McCain spoke mainly in generalities, rather than about such specific issues as abortion, affirmative action, and the death penalty. But even if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.

Notwithstanding its importance, the workings of the Supreme Court is far removed from most of our lives, a distant note that sounds when a significant decision is rendered. But the make up of the Court or their leanings, is mostly unknown. Yet, as I discussed in my previous post, the court is moving in a steady course to the far right. And McCain has pledged to provide the solid majority needed to rewrite the history of our country going forward for the foreseeable future -- possibly my lifetime.

McCain hints of his inclination for the Court, as Toobin states:

In short, this one passage in McCain’s speech amounted to a dog whistle for the right—an implicit promise that he will appoint Justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of teen-agers.

The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement. With the general election in mind, McCain had to express himself with such elaborate circumlocution because he knows that the constituency for such far-reaching change in our constellation of rights is small, and may be shrinking. In 2004, to stoke turnout among conservatives, Karl Rove engineered the addition of anti-gay-marriage voter initiatives to the ballots in Ohio and other states; last week, though, when the California Supreme Court voted to allow gay marriage in that state, only hard-core activists were able to muster much outrage. When it comes to the Constitution, McCain is on the wrong side of the voters, and of history; thus, his obfuscations.

For liberals and progressives, this signals the end of many of rights that we hold dear. The signs are already clearly there:

[I]n just three years the Roberts Court has crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state. It’s difficult to quarrel with Justice Stephen Breyer’s assessment of his new colleagues: “It is not often in the law that so few have so quickly changed so much.” And more change is likely to come. . . . For all the elisions in John McCain’s speech, one unmistakable truth emerged: that the stakes in the election, for the Supreme Court and all who live by its rulings, are very, very high.

As a companion piece to his article, on this week's Journal, Bill Moyers discusses with Toobin what the Supreme Court might look after the 2008 election.




Despite this, I guess for some people (including some feminists), it is more important to punish Barack Obama if Hillary Clinton loses than it is to protect Roe v. Wade. Anyone who says that they will vote for McCain over Obama has made that choice. Because it is all about choice.

(Video and transcript available at Bill Moyers Journal)