October 18, 2004
New York Times EDITORIAL
OBSERVER
By ADAM COHEN
Abortion might be a crime in most states. Gay people could be thrown in
prison for having sex in their homes. States might be free to become
mini-theocracies, endorsing Christianity and using tax money to help spread
the gospel. The Constitution might no longer protect inmates from being
brutalized by prison guards. Family and medical leave and environmental
protections could disappear.
It hardly sounds like a winning platform, and of course
President Bush isn't
openly espousing these positions. But he did say in his last campaign that
his favorite Supreme Court justices were Antonin Scalia and Clarence Thomas,
and the nominations he has made to the lower courts bear that out. Justices
Scalia and Thomas are often called "conservative," but that does not begin
to capture their philosophies. Both vehemently reject many of the core
tenets of modern constitutional law.
For years, Justices Scalia and Thomas have been lobbing their judicial
Molotov cocktails from the sidelines, while the court proceeded on its
moderate-conservative path. But given the ages and inclinations of the
current justices, it is quite possible that if Mr. Bush is re-elected, he
will get three appointments, enough to forge a new majority that would turn
the extreme Scalia-Thomas worldview into the law of the land.
There is every reason to believe Roe v. Wade would quickly be overturned.
Mr. Bush ducked a question about his views on Roe in the third debate. But
he sent his base a coded message in the second debate, with an odd reference
to the Dred Scott case. Dred Scott, an 1857 decision upholding slavery, is
rarely mentioned today, except in right-wing legal circles, where it is
often likened to Roe. (Anti-abortion theorists say that the court refused to
see blacks as human in Dred Scott and that the same thing happened to
fetuses in Roe.) For more than a decade, Justices Scalia and Thomas have
urged their colleagues to reverse Roe and "get out of this area, where we
have no right to be."
If Roe is lost, the Center for Reproductive Rights warns, there's a good
chance that 30 states, home to more than 70 million women, will outlaw
abortions within a year; some states may take only weeks. Criminalization
will sweep well beyond the Bible Belt: Ohio could be among the first to
drive young women to back-alley abortions and prosecute doctors.
If Justices Scalia and Thomas become the Constitution's final arbiters,
the rights of racial minorities, gay people and the poor will be rolled back
considerably. Both men dissented from the Supreme Court's narrow ruling
upholding the University of Michigan's affirmative-action program, and
appear eager to dismantle a wide array of diversity programs. When the court
struck down Texas' "Homosexual Conduct" law last year, holding that the
police violated John Lawrence's right to liberty when they raided his home
and arrested him for having sex there, Justices Scalia and Thomas sided with
the police.
They were just as indifferent to the plight of "M.L.B.," a poor mother of
two from Mississippi. When her parental rights were terminated, she wanted
to appeal, but Mississippi would not let her because she could not afford a
court fee of $2,352.36. The Supreme Court held that she had a constitutional
right to appeal. But Justices Scalia and Thomas dissented, arguing that if
M.L.B. didn't have the money, her children would have to be put up for
adoption.
That sort of cruelty is a theme running through many Scalia-Thomas
opinions. A Louisiana inmate sued after he was shackled and then punched and
kicked by two prison guards while a supervisor looked on. The court ruled
that the beating, which left the inmate with a swollen face, loosened teeth
and a cracked dental plate, violated the prohibition of cruel and unusual
punishment. But Justices Scalia and Thomas insisted that the Eighth
Amendment was not violated by the "insignificant" harm the inmate suffered.
This year, the court heard the case of a man with a court appearance in
rural Tennessee who was forced to either crawl out of his wheelchair and up
to the second floor or be carried up by court officers he worried would drop
him. The man crawled up once, but when he refused to do it again, he was
arrested. The court ruled that Tennessee violated the Americans With
Disabilities Act by not providing an accessible courtroom, but Justices
Scalia and Thomas said it didn't have to.
A Scalia-Thomas court would dismantle the wall between church and state.
Justice Thomas gave an indication of just how much in his opinion in a case
upholding Ohio's school voucher program. He suggested, despite many Supreme
Court rulings to the contrary, that the First Amendment prohibition on
establishing a religion may not apply to the states. If it doesn't, the
states could adopt particular religions, and use tax money to proselytize
for them. Justices Scalia and Thomas have also argued against basic rights
of criminal suspects, like the Miranda warning about the right to remain
silent.
President Bush claims to want judges who will apply law, not make it. But
Justices Scalia and Thomas are judicial activists, eager to use the
fast-expanding federalism doctrine to strike down laws that protect people's
rights. Last year, they dissented from a decision upholding the Family and
Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid
leave to care for a loved one. They said Congress did not have that power.
They have expressed a desire to strike down air pollution and campaign
finance laws for similar reasons.
Neither President Bush nor
John Kerry has said
much about Supreme Court nominations, wary of any issue whose impact on
undecided voters cannot be readily predicted. But voters have to think about
the Supreme Court. If President Bush gets the chance to name three young
justices who share the views of Justices Scalia and Thomas, it could
fundamentally change America for decades.