Ruth Marcus’ Washington Post column is nothing without her hyperventillating over the Supreme Court’s balance. Here’s what she’s written:
The interesting, and unsettling, aspect of this term is not how Kennedy voted but what it could have looked like just one liberal retirement away. It’s not simply that four justices appear to have a far-reaching view of presidential power (Chief Justice John G. Roberts Jr. didn’t participate in the military tribunals case at the high court, but as an appellate judge he had voted to uphold the administration’s position).
Actually, the Founding Fathers anticipated the need to wage war and codified into the Constitution extended presidential powers. That the courts and Congress have whittled those powers down doesn’t make it right.
What’s scary isn’t the fact that conservatives take the words of the Constitution seriously. I’d posit that what’s scary is that (a) 4 liberal idiots in black robes think that the Constitution means whatever they think it should mean and (b) that they can make law without going through the legislative process. I’d suggest that we’re more endangered by Justices Breyer, Ginsburg, Stevens and Souter essentially making this a government of, by and for the judiciary, not the people.
The Founding Fathers worried that one branch would get more powerful than the other two. That’s what’s happening now with the Supreme Court deciding that the right of private property should be rewritten without legislative debate (Kelo v. New London), the right to speak about politics without restraint should be abolished (the Court’s upholding of BCRA as not infringing on my First Amendment rights in the name of good government) & now the 4 idiots being joined by a power-hungry semi-conservative jurist saying that presidents don’t have the power to protect us from our enemies.
This is a court that could be a single vote away, if that, from crippling affirmative action; curtailing, if not abolishing, abortion rights; dramatically lowering the wall of separation between church and state; and limiting congressional authority under the Constitution’s commerce clause to protect the environment and enact other laws of national sweep.
Heaven forbid the justices from shrinking the abuse of the Commerce Clause to be a catchall for doing whatever the federal courts want to do. God forbid that the Justices re-establish Constitutional logic to the debate on the Establishment/Free Exercise clauses concerning the practice of religion. Here’s what the relevant section of the First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
It sounds Ms. Marcus would prefer living in an America where people of faith wouldn’t be able to “freely exercise” their religious faith in public. Unfortunately for Ms. Marcus, that isn’t what the ruling would be if the justices used the clear translation of the Constitution.
President Bush or his Republican successor, if there is one, could soon have the chance to cement the impregnable court majority that has long eluded conservatives. By contrast, the election of a Democratic president in 2008 would probably merely halt the court’s steady drift rightward. Unless the vacancy comes from an unexpected quarter, the best a Democratic president could hope for is maintaining the current conservative tilt, and even that could be optimistic.
President Bush’s Republican successor will move the court rightward, appointing strict constructionists to the courts, thereby re-establishing Constitutional sanity to the high court’s rulings. That isn’t something to be feared. Rather, it’s something to be rejoiced over.
