Mainstream Means Liberal -- If We Already Got Away With It

Wednesday, the USA Today explained in the most condescending way how we should judge Roberts' nomination to the Supreme Court. The theme of the piece was simple: to be either "conservative" or "mainstream," one must accept established Leftist, anti-Constitutionalist precedence of prior Supreme Court opinions. At least, if it was Leftist.

Let the condescension begin:

When President Bush was running for office, he said repeatedly he wanted to fill any Supreme Court vacancies with nominees in the mold of Antonin Scalia and Clarence Thomas - the justices most willing to overturn the court's established precedents.

The implication is slander. Every justice has an Constitutional view that is more powerful than precedence for its own sake. Was it Scalia and Thomas that last year voted to overturn the 1986 established precedent of Bowers v. Hardwick that held that laws that outlawed sodomy were not a violation of the Constitution? Oh, no they wanted to uphold precedence. In fact, Scalia mocked three other justices pretend reverence for stare decisis in this dissent in Lawrence v. Texas.

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Of course, Scalia is not one to hide his philosophy on this subject. He just rightly points out the idiocy of those who would claim otherwise.

I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it . . . .

So what precedence exactly is it Scalia and Thomas would recklessly overturn? Dred Scott? Pleassy v. Furguson? Korematsu v. United States? Of course not. The USA Today, Scalia and Thomas would overturn those decisions in a second. Lochner v. New York? Already overturned and not urged otherwise by Scalia or Thomas. No, the only case that matters is Roe v. Wade. It is the only opinion in the history of the Supreme Court that can't be overturned by a "mainstream" jurist. It is all the Left cares about in this debate. It is really kind of creepy.

The USA Today continues -

Roberts' limited experience as a federal appeals judge - scarcely two years and about 40 largely non-controversial opinions - gives few clues as to his legal philosophy. His work as a lawyer for previous Republican administrations and for private clients, though, offers some hints. He made arguments on abortion rights, free speech and church-state issues that are at odds with established law.

That is right. Get this -- as a lawyer, he advocated the position urged by his client. That is right. Stop the presses. Roberts is a lawyer and he wants to be a Supreme Court justice.

And what pray tell was his church-state arguments "at odds with established law"? As best I can tell, there is no established law in the church-state arena. The last opinion this year had two outcomes to the same issue.

The Scalia-Thomas mantra was convenient political code for voters who oppose abortion, gay rights or affirmative action; reject government regulation of business, safety or the environment; or want official support for their brand of religion.

Who can say that Scalia and Thomas oppose abortion or gay rights? The refusal to make the government adhere to one's policy choices in any area not regulated by the constitution is not the same as opposing that policy decision. Thomas, while dissenting in Lawrence v. Texas explicitly stated that he found the anti-sodomy law silly and a poor policy decision. But -- follow me here -- that was not a good enough reason to find it unconstitutional.

Even if I disagree with Thomas -- and I did in in that case as I agreed with the outcome but for a different reason than Kennedy gave (who, as far as I could tell, didn't give a reason) -- his opinion was not anti-gay.

Scalia and Thomas are likewise against Court intervention in abortion. It doesn't matter what the States say -- their position is only that it is up to the State. And Scalia and Thomas have never issued a Lochner like opinion or supported an "official" brand of religion.

The USA Today does not name one case to support this slander.

Whether such views are within the mainstream of American law and values is very much in doubt. In a USA TODAY/CNN/Gallup Poll 10 days ago, for instance, 29% of the public said Roe v. Wade should be overturned; 68% said it should be sustained.

This point is interesting and surprising. But ignoring that, I'll assume the poll's validity.

First, examine the numbers. I can assure you that there is not one pro-lifer that thinks that Roe v. Wade should be maintained. On the other hand, there are lots of pro-choice people that think Roe v. Wade is bad Constitutional law. This poll means that 68% (at least) of the people are pro-choice to some degree. So if Roe v. Wade is overturned - so what! Abortion will still be legal everywhere by a landslide. Or does The USA Today know better?

The confirmation process, established by the Founders to make the Senate a co-equal with the president in appointing the judiciary, provides the opportunity to examine Roberts' constitutional philosophy. He should be asked in detail his views of how the Constitution should be interpreted. Is it rigid and unchanging, to be viewed only in its most literal, 18th century terms? Or should the apparent intent of the Founders be applied in the light of modern realities?

Where to begin. First, the Senate is not "co-equal." The Senate may reject an appointment, but never make one. The right to appoint is the President's and his alone.

Is one's view of the Constitution "rigid and unchanging?" I would think not -- unless of course the Constitution has not been changed. Then it is. Because if the Constitution has not been amended, it hasn't been changed.

The USA Today would have you believe that being interpreted in "light of modern realities" is something innocent. What it means is "shouldn't the Court take political issues and Constitutionalize them, even though the issues were not governed by the Constitution." This may mean, depending on the USA Today's view, striking laws that are "old fashioned" and contrary to European world view. Or it may mean giving government more power than it was ever given by the Constitution because the Left has an "altruistic" motive.

The next paragraph of the editorial is the Asshat of the Week Statement. It asks a question, assumes a doomsday scenario, and asks us to chose from only the two choices: (1) big, Leftist government no matter what the Constitution says, or (2) the end of civilization as we know it.

Should the modern interpretation of the right to regulate interstate commerce be sustained? Or would he, as some of his backers wish, revert to when there were few restraints on business, few rights for workers and little protection for consumers or the environment?

The answer of course is neither. Maybe he would just ask the Federal government to limit its regulation of "interstate commerce" to matters that were actually "interstate commerce." Maybe we should allow the states to perform their function on the other stuff.

If Congressional power were limited a little, even limiting a "nice" worker safety or environmental regulation or two, wouldn't the states have an opportunity to step in? Of course.

A strict adherence to the commerce clause does not require the bloody stumps of meat packing workers to float in sewage filled streets.

The USA Today ends with this nugget:

Mainstream law is the settled judgments of the Supreme Court. Roberts should be
judged on whether or not he accepts the doctrines behind those judgments. To
reject them would less conservative than radical.

In other words, if an incorrect liberal Constitutional opinion has been approved by a prior decision, only a "radical" would correct it. Except, of course, for decisions like Dred Scott, Plessy v. Furgeson and Bowers v. Hardwick.