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It's Scalia Time!

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Message David Michael Green

Thirty-three years ago, on assuming the presidency in the wake of Richard Nixon’s resignation, Gerald Ford famously sought to ease the worries of a troubled nation with these words: "My fellow Americans, our long national nightmare is over".

Today, I am tempted to offer a warning, not a palliative: My fellow Americans, our long national nightmare is just beginning.

I say this because, just as the Bush administration and the regressive political movement of which it has been the most recent and most potent manifestation are recessing into a toxic pool of failure, incompetence, disaster and public abhorrence – purely of their own making – the politics they represent have now been all but firmly established on the Supreme Court for the foreseeable future. Like a nice case of herpes, this is a gift that will keep on giving for a very long time.

It is also precisely according to plan. The Supreme Court is arguably the most powerful lawmaking institution in American government – the be-all, end-all and final stop for any policy debate in which the country is engaged – and was therefore always the great prize for the cancer of regressive politics which has been metastasizing in America since Reagan, if not earlier. The presidency was always important to the right, and Congress too, especially the Senate. But the chief importance of these institutions was ultimately their capacity to serve as vehicles for remaking the third branch of government, by loading it up with young reactionaries serving lifetime terms, who would therefore sit on the bench making policy for a very, very long time. And who, by virtue of the Constitution’s design, would be all but untouchable by any influence, check or balance, likely including public opinion.

That this was crucial to movement conservatives became obvious in one of the rare episodes where actions taken by King Bush manage to enrage them, and where they abandoned and reviled him across the miasma of their noxious talk radio swampland. When a second vacancy on the Supreme Court opened up, Bush’s instinct was to choose someone he could count on to stand foursquare behind his single most important issue in all of American politics. So he chose Harriet Miers, a sycophant’s sycophant, whose most compelling credential was unquestioning loyalty to The Man, a loyalty that even a guy with Bush’s level of prescience could foresee would be very necessary in the years to come. That was his issue – not abortion, not Guantánamo, not school prayer not stem cells – just finding a reliable vote to keep George out of jail no matter what.

Conservatives went crazy at this real and apparent betrayal. This was supposed to be their big moment, the opportunity they had been scheming and striving toward for decades, and what does Bush do (after they had spent years backing him, right down the line)? He nominates a candidate for the court who was all about George, not about regressivism. Miers possessed neither the dependability of a solid conservative record to assure them she wouldn’t become another Blackmun, Stevens or Souter and move to the left while on the Court, nor the intellectual heft to shape its decisions or to persuade other justices to vote for regressive policies. So the movement hammered its own president, Miers withdrew her name from consideration, and they got Sam Alito instead.

Then we all got Alito. Stupidly, and with great cowardice aforethought, Senate Democrats helped confirm both Alito and Roberts before him, both of whom had learned from Robert Bork’s experience that honesty is, ahem, not always the best policy. Are you a Neanderthal who wants to be on the Court? My advice is to hide your politics well while testifying before the Senate. There’ll be a lifetime of opportunity later to swing your wrecking ball as wide as you want. Meanwhile, though, refuse to take any position (even previously articulated positions) on the principle that every case is unique and you can’t commit to a decision on future matters. Be sure, also, to hide behind vague judicial platitudes like your general respect for honoring precedent. If you want to really do it up right, like Clarence Thomas did, you can even pretend that you’ve never really thought much about abortion, probably the single most controversial issue in American politics prior to the Iraq war. Trust me, Democrats in the Senate will not block your confirmation. Many will even vote for you. Some will go so far as to publicly sing your praises. Then, once the vote is in, you can party down all you like. There’s no going back.

And so it was that the regressive movement got its great and long sought after prize – a Supreme Court so backward that many of its decisions would have looked retro even in the nineteenth century. And not just the Supreme Court, either. Between Reagan and the two Bushes – not to mention classic Clintonian centrism in judicial appointments – the entire federal judiciary is now heavily stacked with right-wingers pledged to maintain their destructive march to the sea, and all of them sitting in jobs with lifetime appointments. This was the movement’s great quest all along, and the decisions of the Supreme Court this year demonstrate the scope of their victory, with far more to come.

There is now a relatively solid five-member reactionary majority on the Court for most every question put before it. Where Sandra Day O’Connor was once the swing vote on the center-right of the court who would curb some of its worse excesses, that position – but not with the same politics – is now occupied by Anthony Kennedy, arguably the most influential and powerful person in American government today, at least on domestic policy questions.

The current Supreme Court is today comprised of two more or less solid blocs. On the right is the really scary Scalia camp, which also includes clones Clarence Thomas and Samuel Alito, and which also gets the vote – albeit usually dressed up in a pretty bow to appear less threatening – of Chief Justice John Roberts. There is no left on the Court, with the possible exception of John Paul Stevens, and the reference by many commentators to the ‘liberal’ Supreme Court faction is a misnomer. Souter, Ginsburg and Breyer are classic centrists, very much in the manner of the presidents – George H. W. Bush and Bill Clinton – who appointed them. Perhaps from the distant perspective of Scaliaville they may appear liberal, but then so also might Augusto Pinochet.

In any case, those four quite frequently vote together in an attempt to block the worse excesses of the radical right. Nowadays they usually lose, because kingmaker Kennedy – who almost single-handedly, by casting his vote with one or the other of these blocs, decides the law of the land – mostly votes with the regressives, especially on the important issues, and certainly more so than O’Connor did when she occupied the catbird seat.

What does that mean in terms of the law of the land in America? What best characterizes the Roberts Court (or should we call it the Scalia Court?, or the Kennedy Court?), more than anything else, is its worship of power. If one is looking for a single narrative theme by which to draw a thread through the Court’s decisions, the best summary concept of the majority’s position is that the powerful in society should be even more powerful, and the little guy should be squeezed and squashed at every opportunity.

That means that the very doors to the courts themselves should slammed in the face of many of those who formerly might have had a day in court. Looking back at the record of the last term, this theme was so pronounced that Yale Law School professor Judith Resnik dubbed it "the year they closed the courts". That means that opportunities to be heard for potential appellants rotting away in jail or facing the death penalty have diminished to the point of near extinction. Even, remarkably, in situations where they suffer due to little or no fault of their own. In one case this year, an inmate’s lawyer filed a brief three days later than the standard deadline, because a federal judge had given the lawyer the wrong date. Too bad, said the hard-core right. Motion rejected without consideration. (The story is, of course, a little different if your name is Libby, though.)

It means that business, especially big business, grows ever more untouchable with every decision handed down by this court, leading Robin Conrad of the US Chamber of Commerce to remark, "It’s our best Supreme Court term ever". Indeed. Somehow, though, I don’t think the same will be said by investors and shareholders who are now less able to hold company management culpable for their misdeeds than they used to be, on the basis of Court decisions this term. I don’t think it will be said by consumers who will pay the literal price for the court overturning a century-old antitrust precedent which has long blocked price-fixing collusion between manufacturers and retailers. And I don’t think the widow of a smoker who was awarded massive damages against Philip Morris, only to have those tossed out by the Supreme Court, will be calling this the best term ever.

The bias toward power in this court means that racial minorities will no longer benefit from school integration programs seeking to promote opportunity, integration and diversity. Those days are now over, by a five to four vote. It means that abortion access was narrowed this year, also 5-4. It means – in a truly absurd and highly revealing stretch – that the Court has now made it impossible for employees to sue for salary discrimination any time beyond 180 days from the receipt of each paycheck. So if you find out years or decades later that your pay was considerably lower than that of your coworkers because, say, you’re a woman – which was precisely what happened in this particular case – too bad. Thus making it almost impossible for workers to get what is owed them, and providing enormous incentives for employers to discriminate rampantly with little potential cost for doing so. Can you guess the vote on this case? Hey, you’re catching on!

The list goes on and on. There is even the occasional exception, but the theme is powerful and dominant. This is your Court. This is your Court on regressivism. Any questions?

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David Michael Green is a professor of political science at Hofstra University in New York.  He is delighted to receive readers' reactions to his articles (, but regrets that time constraints do not always allow him to respond. His website is (more...)
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