Opinion
Uncertainty lurks in court’s future
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Also by Rob Hunter:
- Patient Abandonment Bill targets women's rights (April 21, 2005)
- Read ID Act goes too far infringing upon civil liberties (April 28, 2005)
- Gay rights needed to protect equality (May 5, 2005)
- Evolution not about free speech (March 17, 2005)
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Earlier this week, the Supreme Court ruled that police officers may inspect motorists’ vehicles with drug-sniffing dogs even if they have no grounds on which to suspect any illegal activity.
In previous cases, the Supreme Court has indicated that such searches were only permissible in the case of luggage searches in airports, and justices have often noted that traffic stop searches should be brief because they are often used as excuses for questioning motorists about illegal activity without reasonable suspicion. Monday’s 6-2 ruling appears to be a reversal of this position: now, any and every motorist will be vulnerable to an intimidating and threatening search by drug-sniffing dogs on the slightest pretext — or none at all. Privacy advocates have raised the hue and cry, arguing that the ruling opens the door for further erosions of Fourth Amendment protections, such as dog searches of parked cars or pedestrians on the street without any basis for suspicion specific to an individual.
Absent from the decision was Chief Justice William Rehnquist, who is suffering from thyroid cancer. Although he endured the inauguration ceremonies without incident, Rehnquist’s tenure as a member of the Court is quickly drawing to a close. His departure and the all-but-inevitable resignation of other elderly justices (Justices O’Connor and Stevens) will provide President Bush with the opportunity to appoint new justices who are closely aligned to his conservative philosophy and vision of what the Court’s role should be.
And what exactly is Bush’s vision? Although Bush has said repeatedly that he wants to appoint “strict constructionists,” his use of the term is sufficiently vague that it is not clear exactly what kind of conservatives he wants on the Court. Perhaps more “strict constructionists” like O’Connor, or perhaps justices who espouses view more similar to those of Antonin Scalia, known for taking the meaning of the text of the Constitution quite literally, often with unexpected (or bizarre) results.
According to Jeffrey Rosen, a professor at George Washington University Law School, another possible direction Bush may want to take the Court in is that of restoring the “Constitution in Exile,” a term first used by Douglas Ginsburg, an unconfirmed Reagan-era Supreme Court nominee. The Constitution in Exile is, as Rosen describes it, a package of conservative grievances, positions, and goals in relation to the Supreme Court and the Constitution. Many conservatives have long regarded the Court as the most runaway branch of Big Government, and the Constitution in Exile is a sort of alternative constitutional narrative for judicial conservatives who would have preferred to see things go differently in many of the Court’s defining decisions in the past several decades.
Of particular importance in the Constitution in Exile is the belief that the Court’s reinterpretation (in the wake of the Depression and the New Deal era) of Congress’s power to regulate interstate commerce is unwarranted by the text of the Constitution. No big deal, you say? Consider the fact that the Social Security Act (yes, that Social Security), the Civil Rights Act of 1964, and a variety of environmental, workplace safety, medical, and civil rights regulations would all be overturned by a Court that adhered to a more limited view of Congress’ ability to regulate interstate commerce.
According to the American Constitution Society, following Ginsburg’s first use of the term (and the 1995 decision U.S. v. Lopez, in which Rehnquist and four other justices struck down the federal Gun Free School Zones Act), the Rehnquist Court has invalidated thirty-three federal laws (in its first seventy years, the Court struck down only two). The Rehnquist Court has consistently sought to limit federal regulatory powers, the right to privacy, efforts to afford equal protection to minority and underprivileged groups, and (as it did Monday) the protections afforded to those accused or suspected of crimes or in police custody.
A post-Rehnquist Court, filled with Bush appointees, would be likely not simply to pursue the overturn of Roe v. Wade or the limitation of gay marriage rights, but rather the reduction and rollback of decades of precedent and federal legislation in the name of an extremely conservative vision of the federal government. Even as he denounces “liberal judicial activism”, Bush’s appointees will engage in vigorous activism of their own, overseeing reductions in protections and benefits for minorities, the elderly, and the disabled; limitations on Congress’s power to ensure public health, environmental protections, and workplace safety standards, and striking down legislation meant to protect all Americans’ basic civil liberties and rights. Those Americans who voted for Bush in November hoping that he would bring about a Court receptive to their concerns on issues such as abortion and marriage might be surprised to discover that he will give them far more than they bargained for.
Rob Hunter (jrhunter@gmail.com) is a senior majoring in political science and philosophy.
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Misguided....
Rob, you clearly do not understand Commerce Clause jurisprudence and, in particular, the historical trends of increasing and decreasing the federal government's power under it. You cite Lopez, but fail to provide any discussion of the Court's reasoning. Lopez was struck down because of the lack of a link between guns in schools and interstate commerce. Congress cannot just pass ANY law it sees fit. Our Constitution requires federal laws to be passed within the boundaries of certain powers granted to Congress. You should view this as a good thing: it preserves the rights of the several states. Do you really want the federal government controlling all aspects of your life? Are you that afraid of allowing state government to regulate areas, such as police power (which just happens to be part of the justification for the Lopez decision....). I would continue this post, but I have to get to class.
Next time you choose to discuss the finer points of Supreme Court appointments, try learning something first. Perhaps a Constitutional Law course.......
Oh that's right Anonymous, only conservatives know how to interpret the constitution. Silly liberals, trying to take part in government.
Rob seems to complain about a possible "reduction" or "rollback" of decades of precedent. You forget that Roe v. Wade overturned decades of precedent and the will of the people as expressed through their Elected representatives (not justices who are appointed for life and almost completely unaccountable).
All this was done based on a right to privacy. Where in the constitution does it grant a right to privacy? the answer is nowhere. Just like it says nothing about abortion.
The problem conservatives have with liberal judges is that they stretch the constitution to achieve the result they wish the legislature had come up with. The problem is that the judiciary is not supposed to make new laws, which is clearly what happened in Roe v. Wade.
It will be important for the validity of our court system and democracy to overturn roe v wade and make the decision on abortion up to the states, which it should have been all along.
Any conservative who complains about liberal activism can look at the recent 11th amendment cases--in which the conservative majority essentially decided that the Framers "didn't mean what they said in the text," and get back to me.
As to the first poster--you may understand commerce clause jurisprudence, but clearly, between 1937 and 1995, the Court took a view closer to Rob's than yours. Or did you miss those fifty years (Darby, Wickard v.Filburn, etc.)? For better or for worse, the Civil Rights Act of 1964 was based upon the commerce clause. Under a stronger view of Lopez, the Act would be invalid. Is that what you want? That view--which happens to be Justice Thomas's as well--is ideologically consistent but would lead to disruption of the government by the Court not seen since Dred Scott.
Conservatives need to get through their heads that the term "activist" applies equally well to the liberals on the Warren Court as it does to the conservatives on this one.
please cite the cases on the 11th amendment.
You have not responded to any of my arguments.
You are a typical liberal who comes up with an idea you like and then throws together acouple of things to support it. Just like the liberal justices on the court cite religious leaders when talking about how the death penalty is bad, and then shockingly enough they don't cite religious leaders when it comes to abortion.
They also use foreign countries as an example for saying the death penalty is "cruel and unusual" but only select certain countries, while leaving out huge populations in China and the Middle East.
Liberals need to face it that there time of legislating through judges is over and everyone has caught on to their scheme.
Because so many terrible things have happened through the Supreme Court fulfilling its 204 year old responsibility of judicial review. Unsegregated schools, a woman having the right to choose, the end of Jim Crowe laws. Those are terrible, awful things.
The fact of the matter is the Supreme Court is ahead of the times of most of America, and they should be: They are among the most educated, most intelligent people in America. Without "legislation through the courts" as you all call it, can you honestly say that civil rights would be anywhere near where they are now? Can you honestly say that there was even a shot of schools in the south being desegregated before 1970? Now, can you honestly say that without Brown v. Board it is a possibility that schools in the south would still be desegregated?
As to all the concerns about the upcoming Supreme Court changes, though, they are overblown. Someone who is so far right wing that he wants to give case law through the bible will not be able to garner enough votes from the moderate Republicans to get through. The type of conservatives that will get through will be both politically and judicially conservative. What judicially conservative means is that they do not like overturning legal precedent, no matter that the political leanings of the court it came from.
You know what would assuage the fears of pro Roe v. Wade folks - HAVE CONGRESS PASS A FRICKIN' LAW.
Pro-democracy folks ought to think very carefully about the impact of having a life-tenured house of lords making our laws.
And what I would say to "Have Congress pass a frickin law" is where would we be now if we had to wait for Congress to pass a frickin' law to desegregate schools in the south?
The People, as represented by our Congress of Frickin' Idiots won't pass laws that actually HELP people...that would be democratic. No, they pass laws that protect their narrow self-interest, namely the people that will hire them afterwards to convince future generations of mindless idiots running our country to continue to pass laws that benefit their narrow self interest.
Activist judges are the only reason this country is as good as it is. The people are pretty much stupid.
"As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron. H.L. Mencken, Baltimore Evening Sun, July 26, 1920."
And since now that has happened, the court will soon probably reflect the will of the (mostly) ignorant masses. I cant wait to see how bad it gets under the reign of these neo-cons.
In many democracies citizens shake their heads in frustration and sigh, "I've never seen our country in such bad shape."
That does not happen in Germany.