In a 1999 appearance on Meet the Press, then presidential candidate George W. Bush was asked his thoughts about the Supreme Court. He cited the two most radically conservative justices as his model members: Antonin Scalia and Bush I appointee Clarence Thomas. In his first term in office, Bush II has greatly advanced a policy established by Ronald Reagan to stack the federal courts with ideologues–one might even call them “activist judges”–championed by the unflinchingly right-wing, and increasingly powerful, Federalist Society. The Society counts among its members Attorney General John Ashcroft.
Several of Bush’s most controversial judicial appointees are members of the society, but the holy grail of judicial rejiggering has eluded our faith-based president: an appointment to the Supreme Court. Eight of the current justices are 65 or older (Thomas is 56). We learned this week that Chief Justice William Rehnquist, 80, has been hospitalized with thyroid cancer; if he retires (or dies) and Bush is reelected, Scalia could end up chief justice. Justice John Paul Stevens, 84, has also had cancer and is expected to retire soon. So is Sandra Day O’Connor, a breast cancer survivor. Ruth Bader Ginsberg has been treated for colon cancer. The latter three are all moderate to liberal in their views.
Liberals have been alarmist about the slow rightward drift of the court for decades, but now, when the court is on the verge of taking a truly hard right turn, no one seems to be paying attention. The winner of next week’s election will likely have the opportunity to utterly remake the court. If you aren’t sufficiently worried about President Bush’s unwavering certitude that the Almighty has called on him to reward the rich with massive tax breaks and urged him to invade Iraq, the prospect of Bush remaking the court in his own image (and that of his right-wing base) ought to put the fear of God you.
Long after Iraq has faded from the headlines, a Bush court will impact our lives–and not for the better. There are currently six supremes in favor of Roe v. Wade (but one, Justice Kennedy, may be wavering). Women’s rights groups are convinced a Bush victory will lead to the eventual toppling of Roe, followed by a state-by-state rollback of abortion rights. They’re no longer crying wolf; Bush’s bizarre invocation of the Dred Scott decision during the debates (he’s against slavery!) was actually a coded message to his Bible-thumping base that he will impose an anti-abortion litmus test on his appointees. Ensconcing anti-Roe justices would spell political disaster for the Republican Party in the long term–it is delicious to contemplate the backlash–but given his posturing, Bush has no choice (pun intended).
We are probably safe here in Washington State, where politicians restrict abortion rights at their peril, but the Center for Reproductive Rights believes that 30 states will likely outlaw abortion within a year of the toppling of Roe.
That is just the beginning of the damage a Bush court would inflict. Scalia, in public speeches, has disparaged the wall between church and state. William Pryor, Bush’s appointment to the 11th circuit court of appeals, is also, according to the Washington Post, a “a zealous advocate of relaxing the wall between church and state.” Pryor told the Federalist Society that Roe is “the worst abomination of constitutional law in our history.”
If Bush is reelected, forget about advancing gay marriage; Prudish Scalia and Uncle Thomas don’t even believe gay adults have a right to engage in consensual sex in the privacy of their own homes. They don’t believe proof that a defendant is actually innocent is a reason for the courts to reopen a conviction or halt an execution. In a 1993 case, Scalia wrote, “there is no basis… for finding in the constitution a right to demand consideration of newly discovered evidence of innocence brought forward after conviction” (Thomas concurred).
If Bush is reelected, many of those who voted for him will have no idea how far right they have pushed the country. They will learn, of course, but by then it will be too late.
