Saturday, June 28, 2008



John McCain has at least an outside chance of becoming the next President of the United States. The oldest member of the Supreme Court, John Paul Stevens, is eighty-seven. The next President will have the privilege of naming his successor. Mr. McCain has assured his conservative supporters that his court appointments will be just like those of his predecessor, George Bush, who appointed Justices Roberts and Alito. Roberts and Alito are predictably conservative judges. They consistently vote with the other two ultra-conservative judges, Thomas and Scalia. Justice Stevens votes predictably with the “liberal” justices: Breyer, Ginsburg, and Souter. The one justice who is somewhat unpredictable is Justice Kennedy.

Liberals tend to worry about the issue of abortion: right-to-life vs. choice. They worry that if Justice Stevens is replaced by a justice like Alito or Roberts, there will then be at least five and perhaps six votes on the court to revisit and overturn Roe vs. Wade. In that decision the court found a fundamental right of privacy in the federal constitution and from that concluded that a woman had a right to terminate a pregnancy for whatever reason she chose. Conservatives and conservative justices have been railing against that decision and denying that the federal constitution grants a right to privacy, or a right not to have government make decisions for you.

Some persons take comfort in a statement that John McCain made some years ago. At the time he stated that he would not advocate overturning Roe vs. Wade. One can presume that he would not select judicial candidates who do favor overturning that decision. There’s always hope, and there’s always the possibility that swine will develop wings and take to the air.

Polls indicate that the selection of the next Supreme Court justice is an issue that excites liberals like me, but has no interest to voters generally classified as “independent.” Independent voters are excited by the price of gasoline and by the export of manufacturing jobs from such States as Michigan, Ohio, and Pennsylvania to countries such as China, Malaysia, Indonesia, and Cambodia, where labor unions are weak and workers’ wages are very low. Independent voters are not interested in the issue of “choice” vs. “right-to-life.”

Now, the decisions of the US Supreme Court have no effect on the price of gasoline and probably very little effect on the export of manufacturing jobs. They do have an effect of the lives of working people in this country, particularly people of color, females, and others typically subject to discrimination. For example, a recent decision by the conservative majority of the court has made it virtually impossible for a person to sue an employer for wage discrimination. The decision was that the suit had to be brought within 180 days of the actual discriminatory act. In most cases, a person won’t learn that he or she has been paid less than other equally qualified workers doing the same job until several years have elapsed. Another decision drastically reduced the punitive damages assessed against Exxon Mobile for the disastrous oil spill in Prince William Sound near Valdez, Alaska. These economic decisions were made by justices who were chosen to satisfy the fundamentalist Christian clamor for judges who would ultimately overturn Roe v. Wade.

Conservatives rail against “liberal” judges who “legislate from the bench” or who “make law” instead of interpreting law. Clearly, legislating from the bench is in the eye of the beholder. Antonin Scalia claims that he interprets the constitution according to the original intent of the drafters. Sandra Day O’Connor was accustomed to think, according to an article I’ve read, about the effects of a court decision on the people. One of my friends says that Scalia really thinks about the effects his decisions will make on the lives of certain people. The difference between him and O’Connor is that he is concerned about the well being of a different group of people from the people she was concerned about.

I can believe that. Mr. Scalia does not find an implicit right of privacy in the constitution; therefore, Roe v. Wade was incorrectly decided. On the other hand, for 200 years the courts have not decided that the Second Amendment guarantees that an individual has an absolute right to own and use a fire arm. Here is the text of the amendment:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

Mr. Scalia, in the decision that he wrote for the majority, finds in that statement an implicit right of individuals to own firearms. His finding depends on his interpretation of the amendment rather than on “original intent.” There is no obvious “original intent” that everyone should have the right to own a gun. One can just as easily interpret the “original intent” as giving each State the right to maintain an armed and well regulated militia, or National Guard, and that individual militia (Guard) members had the right to own their weapons. In fact, in 1789 the several States required their respective militia members to supply their own weapons. States didn’t have much money in those days.

It is clear to me which groups Mr. Scalia cares about. He cares about gun owners. He doesn’t care about pregnant women. He cares about business men who may be sued by employees who were underpaid in comparison with other employees. He doesn’t care about the underpaid employees.

The conclusion is, I hope and pray that John McCain doesn’t win election. I hope and pray that Barack Obama will choose judges who care about workers and pregnant women more than about Wall Street, wealthy businessmen, and religious fundamentalists.

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