High Court, High Stakes

As we go to press, we don't know the name of President Bush's Supreme Court nominee or nominees. But it is clear that he will eventually get two, and maybe more -- enough to lead a radical transformation of constitutional law. The challenge is to keep this point at the center of the debate and to avoid diverting attention with personal attacks or strategic maneuvering.

The president has repeatedly promised us justices like Clarence Thomas or Antonin Scalia, and I propose to take him at his word. If we simply take the trouble to read their opinions, it becomes evident that a Court dominated by Thomases and Scalias would launch a constitutional revolution on a scale unknown since the New Deal.

The Senate should also take the president seriously. Bush has already told us the kind of justices he wants, and if he has had a last-minute change of heart, it should be up to individual nominees to convince us that they are not in the Thomas-Scalia mold.

Placing this burden on the nominee permits senators to define a more decorous and consequential role for themselves in giving “advise and consent.” Rather than browbeating nominees, senators should take the president at his word, unless the candidate convinces them otherwise. They should repeatedly confront nominees with the opinions of Thomas and Scalia, and ask them to state, clearly and without equivocation, whether they agree or disagree. This approach would focus public attention on the main issue: the sweeping revolution promised by a Thomas-Scalia ascendancy.

If words have any meaning, it's wrong to call Thomas and Scalia “conservative.” Conservatives seek to conserve the hard-won wisdom of the past and adapt it in small steps. But Thomas and Scalia propose to rip it up by the roots and replace it with a visionary alternative. Sandra Day O'Connor is a conservative; they are something very different: neoconservative revolutionaries. If the president does appoint an O'Connor, it would be easy for his nominee to clearly separate him- or herself from the revolutionary opinions written by the neocons. But if the nominee bobs and weaves, senators should not play cat and mouse. They should say that the risk of confirming another Thomas is simply too high. Unless we call a halt, the Constitution of 2015 will look radically different from the Constitution that has governed this country since World War II. As a practical matter, our 20th-century Constitution hasn't done a bad job in steering us through countless crises. Do we really want to chuck it overboard and navigate with a compass of visionary design?

The neoconservative revolution is a complex affair, and I will be distinguishing three elements: its effort to transform constitutional morality, its attack on social and environmental regulation, and its support for the president's assault on fundamental freedoms in the war on terrorism.

Constitutional Morality

Thomas and Scalia see Roe v. Wade as a symptom of a deeper jurisprudential disease. Roe is based on the traditional understanding of the due-process clause as the source of fundamental rights to “life, liberty, and property.” For the neocons, this tradition is merely the handiwork of a cabal of activist judges who have imposed Roe and a host of other liberal rights on an unsuspecting nation.

This is a gross distortion of history. Over the course of the 20th century, the champions of the due-process tradition have not been activists but the leading exponents of judicial restraint, most notably Felix Frankfurter and John Marshall Harlan. It was Harlan, an Eisenhower appointee and the Warren Court's fiercest critic, who wrote the great opinion expounding the due-process foundations of the right to privacy. The particular issue was contraception, and he found that statutes criminalizing their use would violate “a most fundamental aspect of ‘liberty,' the privacy of the home in its most basic sense.” Conservatives like Anthony Kennedy, a Reagan appointee, are only carrying forward this tradition into contemporary life.

Looking at the broad range of cases, these genuine conservatives have been more deferential to the political process than Thomas and Scalia. Their defense of privacy is part of a discriminating philosophy of judicial restraint, not wild-eyed activism. And yet deference has its limits, as Kennedy said in the Court's recent Lawrence v. Texas decision: “Had those who drew and ratified the due-process clauses of the Fifth or the 14th Amendments known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

In dissenting from Lawrence, Scalia, joined by Thomas and Chief Justice William Rehnquist, treats this traditional understanding with contempt, as the “product of a Court, which is the product of a law-profession culture that has largely signed on to the so-called homosexual agenda … .” Scalia forgets that all exercises in judicial interpretation are the product of a “law-profession culture.” Only the Court's openness to professional critique keeps it honest and distinguishes it from an organ of naked political power. And his claim that the Court has signed on to the “homosexual agenda” is characteristically extreme: The majority held that the state could not throw gays into jail, not that it was required to provide civil unions, much less marriage.

The religious community has much at stake in upholding the due-process tradition. The Constitution doesn't explicitly guarantee religious families the right to send their children to parochial schools. And this right was repeatedly endangered by waves of nativist patriotism until the Court struck down a state statute requiring all children to go to public schools. Written in 1925, Pierce v. Society of Sisters is worth remembering. It assured Americans that the “fundamental theory of liberty” expressed by due process “excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” Neoconservative jurisprudence would throw Pierce into the trash can of history along with Roe v. Wade and Lawrence v. Texas. To top it off, Pierce's result can no longer be reached through the free-exercise clause because Scalia has persuaded the Court to give it an extremely narrow interpretation. Is this really what religious people want?

But the religious right doesn't appreciate the dark side of neocon constitutional doctrine. It has been blinded by visions of revolutionary triumph. Its target is the traditional understanding of the First Amendment, which bars government from endorsing religion in American public life. Dissenting for four justices in a recent case involving the Ten Commandments, Scalia rejected existing case law with disdain. The state doesn't “establish” religion, he asserted, even when it favors the three monotheistic religions -- Judaism, Christianity, and Islam -- over others, like Hinduism and Buddhism, that reject the First Commandment. Whatever the growing number of Asian Americans might think, Scalia tells them that public disparagement of their profoundest beliefs doesn't make them second-class citizens.

These views aren't radical enough for Thomas. Breaking with all other justices of the modern era, he insists that the establishment clause only applies to the federal government, not to the states. As a consequence, there is nothing stopping Utah from making Mormonism into the state religion, so long as other sects retain the freedom to huddle together in private worship.

Scalia's views suffice to generate grave concern. What counts as One God is a notoriously controversial matter (even the Ten Commandments come in different versions), and when it comes to drawing lines, politicians will follow the Christian sects with the most votes, leaving a trail of bitterness behind.

A neoconservative revolution would transform the nation's constitutional morality. The modern Supreme Court has consistently barred the state from endorsing religion, and it has protected each American's right to make intimate decisions about sexuality, childbearing, and child rearing. A Court dominated by Thomases and Scalias would strip away these rights and unleash unending sectarian strife over the version of religious truth that should be imposed on public education, welfare, and much else besides.

The Constitution in Exile

Before the New Deal, the Supreme Court intervened aggressively to deny Congress the power to control the abuses of a market economy. When Congress banned the products of child labor from interstate commerce, for example, the Court took a harsh view of this morally compelling act. The commerce clause, it explained, could not be used as a platform for regulating labor conditions within the states. This involved “manufacturing,” not “commerce,” and on the basis of this wordplay, the statute was held unconstitutional.

All this came to an end during the Great Depression. When Franklin Delano Roosevelt filled his first vacancy with Hugo Black in 1937, 76 out of 96 senators were Democrats. During the following years, the Senate readily confirmed a string of New Deal justices who transformed the commerce clause into a wide-ranging grant of congressional power to correct the social injustices and economic failings of laissez-faire.

This New Deal consensus remained unchallenged on the Court until Clarence Thomas denounced it as a “wrong turn.” The case was United States v. Lopez, and when it came up in 1995, it didn't seem to raise much of a problem under New Deal principles. Congress had made it a crime to carry a gun within a school zone, and while schools may be local, their graduates move throughout the nation, using their skills in interstate commerce. Gun-toting hoodlums obviously disrupt classrooms, and the nation's economic future depends on its schools. So why couldn't Congress prevent violent classroom disruptions under the commerce clause?

Rehnquist, writing the opinion of the Court, responded with the wordplay that led the pre-1937 Court to strike down progressive legislation prior to the New Deal. He treated “education” as if it existed in an entirely different sphere from the “economic” activities governed directly by the commerce clause. He then denied that unsafe schools “substantially affected” commerce, ignoring the compelling factual demonstration supplied by the four dissenters. Although they refused to join Thomas' separate opinion denouncing the New Deal, the other justices in the majority had actually embraced the old methodology that had been repudiated, after sustained democratic debate, 60 years earlier.

The Court escalated its attack in United States v. Morrison, decided in 2000, striking down the Violence Against Women Act as beyond the powers of Congress. But the 14th Amendment explicitly grants Congress the power to “enforce” the amendment's promise of “equal protection.” Violence against women perpetuates their subordination. Yet the five-judge majority ignored historical evidence that the Framers of the 14th Amendment expected Congress, not the Court, to take the lead in fighting inequality. Despite their unending professions of faith in the original understanding, their faith mysteriously ran out when it came to civil rights.

If read expansively, Morrison and Lopez render many of the great legislative achievements of the New Deal and Great Society problematic at best, unconstitutional at worst. But the two true conservatives in the majority -- Kennedy and O'Connor -- have had too much common sense to allow an explosive confrontation with Congress to occur on their watch. They have let the Court only nibble around the edges of the traditional consensus, sometimes even seducing Rehnquist or Scalia away from Thomas' vanguard positions. As a consequence, the Court's case law is currently an unprincipled morass, making it tough for court watchers to guess what will happen next.

It is all too clear, however, that the revolution would move into higher gear with two young neocon justices providing the momentum. Environmental law would be a tempting target. The Endangered Species Act serves humanity's long-term economic interest in preventing environmental catastrophe. But long-run appeals to the economic interests of the nation no longer satisfy the neocons, as Lopez showed in rejecting Congress' power to keep guns out of public schools. It would be child's play to strike down the Endangered Species Act, and other key environmental statutes, as beyond the commerce clause.

The neocons have opened up another front in their attack by an increasingly expansive interpretation of the takings clause. Despite their protestations of strict construction, they don't limit compensation requirements to cases in which property is literally “taken” away from its owners. They increasingly insist on payment when environmental regulations restrict property owners' freedom to build on their land. If this trend continues, governments would be obliged to pay crippling amounts of money if they hope to protect the environment against free-market exploitation.

And with the next vacancy, the neocons will be in a position to enshrine their ideology of the “Constitution in Exile.” In the good old days when Herbert Hoover was in the White House, even child-labor laws were beyond Congress' power, and once the New Deal's “wrong turn” is corrected, these old precedents will provoke a broad reassessment of the Occupational Safety and Health Act and other protective legislation.

Such sweeping challenges would make current disputes into quaint memories. To take only two examples, the Court recently reaffirmed the use of well-crafted affirmative-action programs by a vote of 5 to 4, and it recently upheld McCain-Feingold by the same margin. These decisions would be swept away with a further shift to the right: There would be no affirmative action, and the neocons' First Amendment would dramatically cut back on permissible congressional controls over campaign slush funds.

During the 20th century, the federal government became a general problem-solver capable of responding flexibly to new issues as they came onto the horizon. A neoconservative Court would force Congress to accept the dominion of the invisible hand on an increasingly broad front.

The War on Terrorism

The Court responded uncertainly to its first three terrorism cases a year ago. Over the dissent of Rehnquist, Scalia, and Thomas, the majority rejected the president's effort to insulate Guantanamo Bay from all judicial review. But it didn't go further and explain what due process required, leaving this to future litigation. And by a 5-to-4 vote, it refused to say anything at all about the even more important Padilla case.

Jose Padilla is an American citizen who has never fought on a traditional battlefield. He converted to Islam when in prison and later traveled to a number of Islamic countries. When he was seized on his return at Chicago's O'Hare Airport, the president declared him an unlawful combatant in the war against terrorism, stripped him of all his rights, and detained him indefinitely in a military prison.

The stakes are enormous: If the president can throw Padilla into jail on his say-so, no citizen is safe. After more than two years in confinement, Padilla finally got his case to the Supreme Court. But he did not get relief. A narrow 5-to-4 majority deferred decision for a year or two while the lower courts resolved some preliminary issues. Padilla will stay in solitary confinement on orders of the commander in chief.

Worse yet, he may never get to defend himself before a jury of his peers; the Court's final terrorism decision leaves this issue very much in doubt. It involved another American citizen, Yaser Esam Hamdi, but he was picked him up on the battlefield in Afghanistan -- a far more suspicious place to be than an airport in Chicago. Once again, the president claimed the unilateral right to lock him up in solitary confinement, and this time the Court did reach the merits of the case.

Happily, only one justice gave the president everything he wanted: Thomas wrote an astonishing opinion, worthy of a jurist of a militarized Latin American “democracy.” The decisive plurality opinion, written by O'Connor, did rein the president in, but only mildly. It did not accept Hamdi's claim that, as an American citizen, the Bill of Rights entitled him to a jury trial. The best O'Connor would give him was a “meaningful opportunity” to convince a “neutral” tribunal of military officers that he wasn't an “enemy combatant.” At this hearing, Hamdi would not be able to avail himself of the traditional presumption of innocence, nor was he guaranteed the right to confront and cross-examine key witnesses. The justices might find this “meaningful,” but the Bill of Rights offers a very different view.

When Padilla's case returns to the Court in 2006, he will have to distinguish his case from Hamdi's. This might seem easy: There is an obvious difference between seizing an American on the battlefield and grabbing him at an airport. But that doesn't mean that a majority will have the courage to draw the line, especially if the case returns in the aftermath of another terrorist attack.

At the very least, the Court could use some stiffening of its collective spine. But two more Thomases would offer us something very different. Two more Scalias would be much better because on this occasion, the justice was faithful to his “originalist” creed. Scalia's dissenting opinion in Hamdi v. Rumsfeld is a strong defense of the Bill of Rights in general, and trial by jury in particular. Unfortunately, President Bush's commitment to the war on terrorism makes it far more likely that his nominees will follow Thomas, not Scalia, in their blind enthusiasm for presidential power.

Each aspect of the neoconservative revolution is troubling, but we can now glimpse the full extent of the challenge. The Constitution of the 20th century emphasized religious tolerance, social welfare, equality, and a profound commitment to due process of law. Should the Constitution of the 21st century serve as the foundation for religious intolerance, weak federal government, laissez-faire, and the president's arbitrary power to wage a never-ending war on terrorism?

The Senate hearings should be measured by the clarity with which they raise this question. If the American people come to recognize the high stakes, I cannot believe that they will endorse the neoconservative effort to destroy the hard-won gains of 20th-century constitutionalism. We will lose the struggle for public opinion only if senators get bogged down in personalities or let procedural matters, like the filibuster, trivialize the large issues at stake. This would allow the neocons to portray the confirmation hearings as a rearguard battle waged by a few special interests bitterly opposed to anything that comes out of the Bush White House.

But if thoughtful senators of both parties keep asking the nominees whether they endorse the revolutionary opinions of Thomas or Scalia, it will quickly become clear that the neoconservative challenge does not divide most Republicans from Democrats, or conservatives from liberals. There are tens of millions of old-fashioned conservatives who cherish the right of parents to send their children to parochial schools. But a Scalia Court, if intellectually honest, would find it constitutionally impossible to vindicate this fundamental right. And a Thomas Court would allow the war against terrorism to eviscerate the right to trial by jury. There are also plenty of Republicans who would be appalled by a Court that strikes down key environmental legislation. True conservatives have as much to fear from the neoconservative revolution as racial minorities or labor unions or defenders of the right to privacy. If we win the battle of public opinion, procedural questions like the filibuster will take care of themselves. Thoughtful moderates of both parties will follow the public and refuse to allow the confirmation of a neocon on a vote of 51 to 49, let alone permit Dick Cheney to break a tie.

The American people have had quite enough of visionary schemes at the moment. This is a time for more Sandra Day O'Connors, not more Clarence Thomases.

Bruce Ackerman is the Sterling Professor of Law and Political Science at Yale University and author of the multivolume We the People. As a young man, he served as law clerk to Justice John Marshall Harlan, whose legacy is discussed in this essay.

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