Supreme Irony

The Atlantic Magazine, November 2004

According to a New York Times editorial, George Bush says that if re-elected, he would “try to finish packing the [Supreme] Court against Roe v. Wade, the decision validating abortion rights, which four members say they want to strike down.” If voters elect a Democratic President, the Republican candidate predicts, they “could lock in liberal judicial activism for the next generation,” and “the social landscape could dramatically change.” The televangelist Pat Robertson reminds the faithful that “five people can decide the destiny of unborn children [and] whether we can pray or not pray.” But, he says, “it looks as if two or three of those unelected officials are getting ready to retire or go on up to that great court in the sky.” The liberal columnist Anthony Lewis forecasts that a Republican victory will portend Supreme Court nominees who, like William Rehnquist, are “judicial ideologue[s] of the right.”

Any of these warnings could have come out of yesterday’s newspaper. But in fact none of them is recent. The Times was worried, back in 1992, about what would happen if the elder President Bush was re-elected. The Republican candidate fretting about liberal judicial activism was not George W. Bush but Bob Dole, in 1996. Robertson was predicting the death of justices (all of whom are alive and well) four years ago. And Lewis was writing about Ronald Reagan’s ambition, way back in 1980, to nominate other justices like Rehnquist.

This year, once again, the fate of the courts is a base-rallying point for both parties. As of this writing the candidates themselves were largely avoiding the issue, but the rhetoric from interest groups supporting both Bush and Kerry comes straight from the old script: Vacancies are inevitable. The balance of the Supreme Court is at stake. If you’re a liberal, Roe is in grave peril and the right threatens a “rollback” of everything you hold dear. If you’re a conservative, the Court is on the verge of imposing an anti-religious social agenda on your family and community. Either way, justice in America is an out-of-control car speeding toward the edge of a cliff, and only a vote for [fill in your candidate here] can prevent it from plunging over the edge.

Yet this same car has been speeding toward this same cliff for decades, and it never actually seems to reach the edge. This election isn’t likely to change that. To be sure, diehards on both sides think Armageddon is already upon us: some conservatives see grave judicial usurpations in, for example, the Court’s ban on the death penalty for the mentally retarded and its upholding of affirmative action; some liberals see Bush v. Gore and a few cases about the Eleventh Amendment as the modern equivalents of Dred Scott. (Quick quiz: What is the Eleventh Amendment?)

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