On Tuesday, a 5-4 Supreme Court majority gutted one of the most fundamental workplace safeguards established by Title VII of the 1964 Civil Rights Act -- its guarantee that employees' paychecks not be reduced on grounds of race, gender, religion, age, or ethnicity. The Court's decision so disturbed Justice Ruth Bader Ginsburg, a lifetime gender discrimination foe, that she made the rare gesture of reading aloud her 20-page dissenting opinion from the bench.
No one can yet foresee where 52-year-old Chief Justice John Roberts will take the Supreme Court during the several decades he will likely preside over it. But one thing is already clear: Roberts himself wants the public to understand that he is intent on steering away from the ideological, polarized warfare of the Rehnquist era and toward a new era of "consensus." On this point, he is not content to let his votes or the Court's decisions speak for themselves.
Predictably, proponents of Judge Samuel Alito's Supreme Court nomination have mobilized to scrub a particularly troublesome spot on his record -- a 1996 dissenting opinion in a case called United States v. Rybar, in which he voted to invalidate a federal law banning machine guns. Alito insisted that applying the statute to mere intrastate possession of machine guns exceeded Congress' power to regulate interstate commerce.
Two weeks past Congress' spring break, Senate Majority Leader Bill Frist still could not “with certainty” fulﬁll his oft-repeated vow to squelch Democratic ﬁlibusters of President Bush's judicial nominations. Skeptics in his own caucus deny him the 51-to-50 majority (including the vice president's tiebreaking vote) he needs to execute a maneuver known as the “nuclear option” -- a parliamentary power play to sidestep Senate rules requiring 60 votes to end ﬂoor debate.
Restoring the Lost Constitution: The Presumption of Liberty By Randy E. Barnett, Princeton University Press, 357 pages, $32.50
Except for conservative activists and a few academics, virtually no one pays attention to right-wing legal theories. But if, as promised, George W. Bush in a second term hands the federal judiciary over to acolytes of Justices Antonin Scalia and Clarence Thomas, conservative legal scholarship may prove an indispensable guide to where America is headed. The stakes involve far more than abortion rights and other high-profile legal issues.