Moving the Court to the Right
By Jan Larson (01/31/06)
With the confirmation of Judge Samuel Alito to the United States Supreme Court a virtually certainty as of this writing, most agree that the replacement of Justice Sandra Day O’Connor with Alito will move the Court to the ideological right.
While those on the left such as Ted Kennedy, John Kerry, et al believe this shift will bring about a transformation whereby all individual rights are obliterated and presidential power expands to dictatorial proportions, the fact is that an ideological shift to the right can only mean a return to the “rule of law” that Kennedy, among others, profess to love.
Kennedy and the other trembling Senatorial solons fear that a Court with Alito instead of O’Connor will become conservative-activist as opposed to the liberal-activist court that they know and love.
What they fail to understand is that while liberal judges find things in the Constitution that aren’t there, such as how the plain text “public use” phrase in the Fifth Amendment somehow came to effectively mean “public purpose” in Kelo v. New London [1], conservative jurists follow the words that are actually written in the Constitution.
A conservative Court serves as a stabilizing force in that such a court precludes the sort judicial “surprises” and evolving standards as have been evident in recent rulings.
In his dissenting opinion in Grutter v. Bollinger [2] Justice Thomas wrote, “… the Constitution means the same thing today as it will in 300 months.”
This was, of course, in response to O’Connor’s majority opinion stating that the ruling in the case would effectively expire in 25 years. That, of course, begs the question of just what O’Connor understood the term “equal protection” to mean when the words were written versus what they meant at the time of her ruling versus what they would mean 25 years hence?
While there was some lip service paid to questions about Alito’s views on presidential power, his associations in college and other issues, the main point of contention in the judicial confirmation process continues to be Roe v. Wade [3]. One could throw out all other issues for every Supreme Court nominee and it always comes down to where they stand on Roe. There is no middle ground on this issue; you’re either for it or against it. Many conservatives are giddy that a Court with Alito will be more likely to overturn Roe, while liberals fear that abortion on demand will go the way of the dinosaur.
The hard truth is that Roe really doesn’t matter that much. I will offer that there will never be a day during my lifetime when abortion is illegal across this country. Even if Roe were overturned, all that would do is return the question of abortion “rights” to the states. Some states would likely make it illegal, but certainly others would not. When the majority of Americans support the freedom for a woman to choose to have an abortion, it isn’t going to disappear overnight. The conservative goal to end abortion will only come through persuasion and education, not though judicial dictum.
Far more important than the issue of abortion in terms of the Supreme Court are questions of eminent domain, affirmative action, intrastate commerce and campaign finance, among others. The aforementioned Kelo and Grutter cases are two examples of rulings that are, in fact, contrary to the plain language in the Constitution, specifically the Fifth and Fourteenth amendments, respectively.
The Court’s (with Justice O’Connor voting with the 5-4 majority) ruling in McConnell v. FEC [4] upholding the constitutionality of the McCain-Feingold campaign finance reform act unquestionably restricts speech despite the plain language of the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press …”
As Justice Scalia wrote in his dissenting opinion (references omitted), “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”
What part of “shall make no law” did the Court’s majority not understand?
There are no guarantees as to how Samuel Alito will vote once he assumes the role of Supreme Court Justice, but his record indicates that he is likely to advocate a conservative, constructionist view of the Constitution. Political ideologies aside, if you asked most Americans their views on how the Supreme Court should base decisions, I’d wager that most would agree that the written words of the Constitution are preferable to the hidden meanings and evolving standards that have been so readily apparent in recent years.
There are ways to change the Constitution, but having Supreme Court Justices reading things into the Constitution that aren’t there isn’t the way to do it. A conservative, constructionist Supreme Court is vitally important to maintaining stability of the rule of law and it is my sincere belief and hope that Samuel Alito will fulfill such a role for many years to come.
[1] http://tinyurl.com/dpalf
[2] http://tinyurl.com/f207
[3] http://tinyurl.com/6sc92
[4] http://tinyurl.com/7b64v
Copyright ©2006 Jan A. Larson All rights reserved.
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