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Imagining America if George Bush Chose the Supreme Court

By ADAM COHEN

Published: October 18, 2004

ARTICLE TOOLS

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.
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The above x-posted as a community service and excerpted from a message
sent out by People for the American Way.

An informed Voter makes for an excellent election. If YOU don't Vote,
You Let Someone Else Vote TWICE in Your Place.
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