© 2006 Ross Williams
Sandra Day O'Connor finally gets to retire. After twenty-some-odd years on the Supreme Court being the lone voice speaking for women in America she gets to hang up her robe, put on her house coat, and knit sweaters and bake cookies for the grandkids. Hooray.
Some people will quibble that Ruth Bader Ginsburg also speaks for women on the High Court, but that's entirely debatable. Ruth speaks for some women, certainly; particularly those who believe in emasculating the United States. In a "think locally, act globally" turnabout, Ms Ginsburg famously declared – in some vague reference to environmental protectionism – that she didn't care where the notion came from, if it's a good idea it's a good idea, and she'd vote on rulings even if it violated US law and US Constitutional precept.
Tha-a-at's the kind of High Nine justice we all want. Isn't it? If a US industry follows US laws but pollutes anyway, our Supreme Court ought to apply the laws of, say, Sweden to punish the US-law-abiding US industry. The US shouldn't pollute, after all, and who knows how to control industrial pollution better than nations with no industry to speak of; it is intuitively obvious that we should follow Sweden's pollution-control laws.
But why stop there? If the US follows its laws and all the international laws relating to the treatment of unlawful combatants captured during hostile action, but some people think we're still rude anyway and sue the US, our Supreme Court ought to apply the rules of – why not? – Syria in dealing with pan-islamist militants.
The US shouldn't be rude, after all ... and who knows better how to deal with islamist militants than nations which breed them like flies?
Ginsburg’s critics might foolishly accuse her of ignoring rule of law, but that is simply preposterous. Ruth Bader very, very firmly advocates rule of law. Just not necessarily the rule of American law.
But at any rate, it's safe to say that Ms Ginsburg doesn't speak for all American women. Sandy, on the other hand, has been nearly unanimously hailed by men and women of the left, right and center. Last summer, she wanted to retire to her front porch, and the President nominated some schlub to replace her. The guy was whizzing through the Senate and it looked like O'Connor's grandkids might finally get hand-knit sweaters for Christmas… only to have the Head Robe die on us.
Liberals have long-claimed Bill Rehnquist was bad for the country, and I guess they finally proved their point. Rather than waiting to die until a junior Justice was replaced by a sound judicial candidate, he died prematurely thus selfishly absconding with that candidate for himself. What happened was a right-wing-whacko Chief Justice was replaced by a centrist, and leaving the centrist Sandra Day unable to retire. As I say: bad for America. Apparently. For some reason.
Of course, O'Connor still wanted to retire, so the President nominated a right-wing-whacko to replace her. And he'll make it. If you're keeping score on the Court, we've lost a centrist and a right-wing-whacko and we've gained a right-wing-whacko and a centrist. If you're anybody but a US Liberal, this is a wash. A draw. Even steven. Tie game called on account of tedium.
...if you're anybody but a US Liberal.
If you're a US Liberal, losing a centrist and a right-wing-whacko and gaining ditto is a loss. It's a two-vote swing in "the balance that the Supreme Court has upheld in all the years that Justice O'Connor has served there" ... to quote John Kerry, who can't add.
To further quote the innumerate Kerry: "What could possibly be more important than an entire shift in the direction of the Supreme Court of the United States?"
Um, Mister Senator? The shift in ideological composition of the US Supreme Court over the past twelve months is bupkus. You know what bupkus is, doncha John? It’s the number of Supreme Court nominations you got to make in your first term.
But that’s the level of idiot rhetoric being dispensed. Zero net change is a huge slide down some mythical slippery slope into the desperate legal backwaters of, oh, say, 1972.
By many accounts, the Court has three Liberals: Breyer, Ginsburg and Souter.
By many accounts, the Court has three Fascists: Alito, Scalia and Thomas.
By many accounts, the Court has three centrists: Kennedy, Roberts and Stevens.
Of course, by some accounts, those alignments shift, depending on your personal thoughts on what constitutes Liberal ideology or Fascist. I’ve heard many people describing the High Nine as fabulously fascistic after the infamous Kelo decision. However, the “fascists” on the Court which allowed local governments the power to seize personal property through eminent domain to hand over to private developers were the Liberals, Breyer, Ginsburg and Souter, joined by the centrists Stevens and Kennedy. The Fascists Scalia, Thomas and Rehnquist [pre-Alito] and the centrist O’Connor were the ones caught voting on behalf of the Bill of Rights.
So it’s all a matter of perspective. If you have any, the Court is just about as evenly split as you can get without using a measuring spoon and a meat grinder. If you don’t have any, every case, every nomination, becomes a Lopsided Landmark in Waiting.
Rational citizens among us might legitimately wonder why the legally-perspectiveless haven’t stressed themselves to premature hair loss, ulcers, strokes and coronaries. Personally, I can’t wait for them to start dropping dead, even though I know they’d just be replaced by equally obtuse “court watchers”. But that’s the environment we find ourselves living in. And it’s annoying.
Not to mention insulting.
The hugely vast majority of Supreme Court decisions are about things that neither you nor I hear about, but will affect us. The Court rules against some corporation, which has to pay a fine or change their business practices, and suddenly their prices go up. We don’t know why; “ah, inflation … what can you do?”
The Supreme Court cases we hear about usually don’t affect us at all. The Kelo case – New London CT was allowed to abscond with the private property of Susette Kelo for the private benefit of land developers – which wanted to tear down houses to build …houses. Which would be sold for private profit. Unless you are Susette Kelo or any of the several dozen other landowners who were eminently domained, this ruling has no effect on you in any way other than to make you mad.
If you’re a commercial or residential developer, it would likely make you glad. But unless you are the New London Development Corporation, it also doesn’t affect you.
We all heard about the High Nine ruling on the attempt in 2005 to pass a federal law to force the state of Florida to keep Terri Schiavo plugged in. Virtually every American heard about that and had an opinion one way or another, yet virtually every American failed and refused to be Terri Schiavo, her husband, her parents or her siblings – who were the only people affected.
We’ve all heard about our current administration’s incursions into the Bill of Rights, by way of our rude treatment of Gitmo non-POWs, and Jose Padilla, and warrantless phone tappings of terrorist phone calls into the US. Yet unless you are one of the few hundred Yemeni hotheads caught playing war in Afghanistan, the Puerto Rican hothead who wanted to help them, or the handful of Americans their terrorist friends keep in contact with, none of the past or future Supreme Court rulings on these will affect you.
Right, right, these past and future rulings “will make it easier for the government to abuse the Bill of Rights”. Yet who can name any of the several court rulings which allowed warrantless and random roadside stops, searches, sometimes seizures and occasional compelled evidence, all absent probable cause? Who can name the similarly multifarious rulings which allowed the universal and warrantless searches and often seizures at airports and courthouses – of all ironic places?
Rulings which affect us … we are ignorant. Ruling which don’t … we trot them out at the drop of a hat and act all ideologically outraged about them. But ideology does not equal reality.
Which brings us to perhaps the most notorious example of High Nine irrelevance to daily life: Roe v Wade. Despite the ridiculous claims of the pro-abortion crowd, abortion does not affect “every woman”; despite the claims of the anti-choice activists, abortion does not offend “every American with a conscience”.
There are, by rough and popular estimates, 1.5 million abortions performed annually in the US. By rough and popular estimates, there are 150 million females in the US. Most Americans, apart from Senator Kerry, are math-capable enough to understand that abortion affects about 1% of our females. You don’t need to be Masters or Johnson to know that abortion affects zero percent of the males in the country – another roughly 150 million people.
Abortion affects just about ½ of 1% of Americans. Yet it dominates about 75% of the debate – if we can legitimately call it that, and we can’t – of our judicial nominees. Strident loudmouths on both edges of the issue have dominated the discussion since the mid-seventies, and those both stridently for and against don’t even comprise a majority of Americans. Together, they’re about one-third of our population.
An issue affecting 0.5% of Americans, dominated by one-third of us, and taking up three-fourths of our class time … again, Senator Kerry excluded, most of us can immediately see a problem. The numbers simply don’t make sense.
This means that the words which describe the numbers won’t make sense, either. And this is where the Senate has shown its greatest talent. Joe Biden is reportedly close to finding a question mark in his allotted Judiciary Committee question period. Ted Kennedy, fresh from scolding Mr Alito about belonging to a Princeton University boys club, finally quit his Harvard University boys club. And Dick Durbin may be realizing that he actually needs to stop asking questions long enough for an answer to be shoe-horned in.
I may be wrong about Durbin.
We have a new Supreme Court justice, we have the same Court balance that we had last year at this time, the sky is not falling, and the only thing that has changed are a few names. Let Sandy O’Connor bake her cookies.