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 ([email protected]) is a senior majoring in political science and philosophy.
