A Preview of Coming Attractions

“Show me the man and I’ll show you the law” [David Ferguson: Scottish Proverbs (1641)], a well-known truth then, and one that still applies four centuries later. After all, the law, whether legislated or otherwise imposed, always ends up being what the judge says it is, overtly or inadvertently influenced by personal considerations and convictions.

And what applies to a judge, applies to any group of judges… no matter how supreme!

That brings us to the law of the land, the Constitution, and the decipherers in charge of its interpretation: the nine justices of the United States Supreme Court. It also brings us to the contentious struggle that some of us are experiencing of late in our hope to maintain a Court that can keep us all under one apolitical roof. Or, at least make us feel that way with the presumption that the balance of power in government is not tilted, and that our basic, inalienable rights remain sacrosanct. One must live with hope, and to do so, on occasion, we need to paint over the graffiti of some irrefutable realities.

Checks and balances, judicial independence… for a working democratic government, that’s as good as it gets. Well, at least in theory… for the Supreme Court members, although appointed for life with emoluments assured, are politically-picked and only on rare occasions does one break away from ideological captivity. As a result, judicial independence for the SCOTUS (Supreme Court of the United States) has proven to be, time and again, but a myth.

The Court now, as in the past, is a product of the power and ideology that appointed its members. It is a unidimensional court where the justices run a liberal-conservative dimension somewhat skewed to the right of the political spectrum, much in line with the ideological makeup of the nation. Something that both the Press and politically-savvy citizens always knew, or suspected, without having political scientists prove it by way of matrixes, spatial models, Euclidian mathematics and statistical inference.

On December 12, 2000, in the case of Bush vs. Gore, on writ of certiorari to the Florida Supreme Court, by a 5-4 decision the SCOTUS did for all practical purposes “elect” the POTUS (President of the United States). The stalemate of both Right and Left quartets of justices was broken by a Republican-appointee justice with a moderate voting record: S. D. O’Connor. Except for that historic [and critical] vote, Justice O’Connor has proven to be a “mediating” voice during her years in the Rehnquist Court.

Now, early in his second presidential term, Bush has received another power-enabling chance to strengthen his ultra-conservative rule. During his first term it was the 9/11 episode; now it’s the opportunity to drastically change the ideological makeup of the Court, replacing Justice O’Connor, an almost neutral “green” in the red-violet spectrum (progressing from left to right), with Judge Samuel Alito, who stands one-hundred nanometers in wavelength to the right of O’Connor, and who’s likely to wear the same indigo robe now worn by Thomas and Scalia.

The appointment of Chief Justice Roberts to replace the late Rehnquist may not have altered the short-term direction of the Court, but certainly affects its future makeup, since he is just 50 years old… and a very “committed” jurist intent on following the doctrinal position of the far Right. His most recent siding with Thomas and Scalia in their minority stand opposing Oregon’s Death with Dignity Law should leave very little doubt as to where in the liberal-conservative dimension he stands. Far, far to the right; for he is not, and never was, the question mark claimed by many Democrats during his confirmation hearings.

Interpreting the Constitution does not require summa-cum-laude minds, only competent jurists with a clear mind and an open heart able to read the evolution of our rights, so as to improve the well-being of the individual citizen… always in accord with an equitable society. That is, an understanding and acceptance of such evolution in accord with the times, and not an atrophy, negation or diminution of the most basic rights.

Although Bush’s Justice Department was defeated by not having Oregon’s Death with Dignity Law overturned, Roberts’ vote in the minority, and the prospect of a fourth indigo robe in Alito, bodes ill for the preservation and evolution of Americans’ basic rights. That vote by Chief Roberts was but a preview of coming attractions. Roberts and Alito will complete the Violet Barbershop Quartet (with Thomas and Scalia). It’s scary to think what would take place if something were to happen to Justice Stevens, now 85, while Bush and a Republican Senate majority are still in power.

As for how most Democrats have conducted themselves during this judicial takeover, it’s an embarrassing and total shame; one that defies any progressivism still left in the Democratic Party. Even when facing certain defeat, principled individuals, particularly those entrusted to lead, must stand tall when personal freedoms are at risk… and warn people of what’s to come, doing so with passion and conviction. It is obvious that with many Democrats, there’s no “citizens beware.”