Marjorie Cohn: Beware Scalia-Thomas Clones

After months of intense campaigning about Iraq, terror, taxes and jobs, the future of the Supreme Court has finally entered the public discourse. Chief Justice William Rehnquist is in the intensive care unit, after undergoing a tracheotomy for thyroid cancer. The Court issued a terse statement, saying the Chief would take the bench when the justices reconvene on Nov. 1. Unlike the detailed updates released during Ruth Bader Ginsburg's struggle with colon cancer in 1999-2000, however, we have been given no details about Rehnquist's prognosis.

Just as Bush has downplayed the disappearance of 380 tons of high explosives in Iraq that U.S. forces should have secured, he has mentioned little, if anything, about Rehnquist's illness. Karl Rove, Bush's evil genius, is undoubtedly aware of the explosive nature of a dialogue about how the next commander-in-chief could shape the face of the Supreme Court for decades.

Rove likely knows a recent Time magazine poll showed 86 percent felt appointments to the Court during the next four years were very important (59 percent) or somewhat important (27 percent) to their choice for president. In that poll, 43 percent said it would make them more likely to vote for Kerry, whereas 38 percent thought it would lead them to choose Bush.

When the issue arose in the second and third presidential debates, Bush said he would have "no litmus test" for his judges. But during the 2000 campaign, Bush let slip that the justices he admired most were Antonin Scalia and Clarence Thomas. During the second debate recently, Bush echoed that sentiment, saying he would pick "strict constructionists," a buzz-phrase for Scalia-Thomas clones.

Fortunately, no vacancies have arisen on the high Court during Bush's term. But his choices for lifetime appointments to the lower federal court bench reveal a definite litmus test - anti-choice, anti-civil rights, anti- worker, anti-gay, anti-environment and pro-corporate. (See my editorial, Bush's Judges: Right-Wing Ideologues.) Bush's 201 nominees - 24 percent of all active judges - were ideologically screened by the conservative Federalist Society. Many Bush appointees are "embarrassingly unqualified for judicial office," wrote Professor Ronald Dworkin in The New York Review of Books recently.

Bush could have as many as four appointments to the high Court during a second term. All justices but Clarence Thomas are over 65 years old. Rehnquist is 80. John Paul Stevens, the most liberal on the Court, is 84. Sandra Day O'Connor, 74, and Ginsburg, 71, are both cancer survivors. Ginsburg, another liberal, is in frail health.

The Supreme Court is currently divided by a razor-thin 5-4 margin. Regardless of the outcome of Rehnquist's illness, he has said he would not remain on the Court for another four years. Bush, if given a second term, would replace Rehnquist with a much younger, right-winger, who would remain on the Court for years to come. Bush would also have the opportunity to choose the next chief justice, who could significantly shape the Court. If Bush had his druthers, he would elevate Scalia or Thomas to Chief. But either choice would invite a nasty partisan battle in the Senate, which must approve the president's nomination by a two-thirds vote. Bush would probably find another right-wing zealot to assume the role of chief justice.

What would the Court look like if Bush were to appoint justices in the mold of Scalia and Thomas? Roe v. Wade could be overturned. Abortion could become a crime in most states - back to back-alley abortions for poor, young women. Workers could lose family and medical leave. Gays could be imprisoned for having consensual sex in the privacy of their own homes. Equal voting rights for African Americans and other racial minorities could be at risk (not just de facto, the way they are today, but de jure, as well.) Affirmative action could be eviscerated. Preservation of the environment could give way to corporate profits. Inmates in this country (not just in Iraq and Guantánamo) could be beaten with impunity.

In the second debate, Bush's seemingly righteous criticism of the racist Dred Scott decision was really a veiled message to his right-wing followers that he would appoint anti-abortion judges to the Supreme Court, according to former Supreme Court law clerks Charles Rothfeld and Thomas Colby, writing for americaprogress.org.

The May 2004 report, Courting Disaster 2004: How a Scalia-Thomas Court Would Endanger Our Rights and Freedoms, published by People For the American Way, concluded: "Supporters of Justices Scalia and Thomas praise them as 'strict constructionists,' 'originalists,' 'traditionalists,' and advocates of the 'rule of law.' These labels are misleading because they obscure the two Justices' ultra-conservative activism. The terms suggest that Thomas and Scalia are committed only to an interpretation of the law that is true to its actual wording, or in the case of the Constitution, true to the intent of the Framers. This legal approach, its adherents say, ensures that they are not activists who use their position to shape the law in their own political image. Actually, the opposite is true. A Supreme Court modeled after Scalia's and Thomas' judicial philosophy would be an activist Court that would produce dramatic changes in the law as we know it. And virtually every change would move our laws in the direction advocated by right-wing conservatives."

The future of the law of the land is at stake in this election. The differences between Bush and Kerry are stark on judicial appointments. During the third debate, Kerry said: "I'm not going to appoint a judge to the court who's going to undo a constitutional right, whether it's the First Amendment or the Fifth Amendment or some other right that's given under our courts today, or under the Constitution." Kerry added: "And I believe that the right of choice is a constitutional right."

Voters will have a choice between an administration that fights to protect the rights of everyone, not just those of straight white rich religious men, and one that promises to remake the Court in the image of those who would deny basic liberties to many.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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