Posted on July 18, 2000

by

Daniel Clark

Media analysts often remark, usually with grave concern, upon our "conservative" Supreme Court. Perhaps they make that assumption because seven of the nine justices have been appointed by Republican presidents. It may also be that liberals had grown so accustomed to the Court's active support for their agenda that the occasional anomaly, like this year's decision in Boy Scouts of America v. Dale, is interpreted by them as a violent right-wing takeover of the judiciary.

Whatever the case, they could not have been proven more wrong by the Court's most recent session, which has got to be considered one of its most liberal ever, characterized by a subordination of the Constitution to precedent, and an encroachment on legislative authority which borders on a conscious contempt for the constitutional separation of powers.

In their latest affront to religious freedom, the justices declared that a student-led prayer at a public school football game is unconstitutional. Since it's impossible to read the First Amendment in such a way as to believe it regulates that activity, Justice John Paul Stevens, flailing in an effort to connect the dots between the federal legislature and a high school in New Mexico, wrote the following:

"The first clause in the First Amendment to the Federal Constitution provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' The Fourteenth Amendment imposes those substantive limitations on the legislative power of the States and their political subdivisions."

By this reasoning, a "political subdivision" (e.g., a school board) is prohibited from involvement in an act which recognizes a religion. Never mind debating the word "establishment"; Justice Stevens' argument has a more fundamental flaw, in that the Fourteenth Amendment doesn't say anything close to what he claims it does. For starters, it makes absolutely no reference to any "political subdivisions" below the state level. Moreover, its first section restates the Fifth Amendment, not the First. It makes no explicit mention of religion whatsoever.

While the decision perverts the Constitution, it is in complete agreement with the 1992 Lee v. Weisman decision, which forbade public schools in Rhode Island from allowing religious invocations at graduation ceremonies. For those keeping score, that's precedent one, Constitution nothing.

By giving its own previous interpretations of the Constitution priority over the document itself, the Court dooms the Constitution to exile in limbo. All it takes is one false interpretation of an amendment, and its original meaning is lost for as long as liberal justices continue to hold a majority. As one precedent is formed on the basis of another, the meaning of the Constitution is distorted, like a true story which has been embellished as it has been passed along from one neighborhood gossip to another, and then another, and so on.

If any encouragement was offered by Chief Justice William Rehnquist's scorching dissent in the Santa Fe case, it was squashed a week later when Rehnquist, a longtime critic of the Miranda v. Arizona decision, nearly gave his brain whiplash when he wrote the majority opinion upholding that same ruling.

Shortly after the 1966 Miranda decision was handed down, Congress enacted a law in its criminal code stating that a confession is admissible as evidence as long as it is given voluntarily. This is consistent with the Fifth Amendment's demand that "No person ... shall be compelled in any criminal case to be a witness against himself." But it conflicted with Miranda, which requires police to read a statement warning criminals not to confess. The Fourth Circuit Court of Appeals ruled in favor of the congressional law, arguing that the voluntary confession of an armed bank robber was admissible, although he had not been read his Miranda rights. In other words, the Circuit Court decided that a law which was legitimately passed through the legislature superseded a law which was artificially invented by the judiciary.

Rehnquist would have none of that. The Chief Justice, generally thought to be the Court's third most conservative member, wound up his opinion by making the alarming statement that, "[W]e conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively." The Court "announced" a constitutional rule? That sounds like the job of an amendment.

Justices Antonin Scalia and Clarence Thomas dissented, but all the others signed on to the declaration that the Supreme Court, and not Congress, holds the preeminent legislative power in the federal government.

If any single issue most reliably distinguishes liberal judges from conservative ones, it is their willingness to legislate from the bench. When presented with a vote on whether to do just that, the justices elected to be liberals, by a count of seven to two.

As if to prove that his liberal decision in Dickerson v. United States was not an aberration, Justice Rehnquist joined the majority opinion written by Justice Stevens in a case which so threatens free speech, that it caused the far-left ACLU to join the cause of a group of anti-abortion demonstrators.

Actually, most of the culpability in this case rests with the state Supreme Court of Colorado. This is because the law in question does not violate the First Amendment, since it was made by the state, and not the federal legislature. However, most state constitutions place many of the same restrictions on their legislatures as the federal Constitution does on Congress. Section 10 of the Constitution of the State of Colorado, for instance, says that "no law shall be passed impairing the freedom of speech." The state law involved in this case, which forbids any protester from approaching within eight feet of someone entering or leaving an abortion clinic, is certainly an impairment.

The six-member majority, through Justice Stevens' opinion, based its decision on its presumption that the state of Colorado had an interest in making laws which "protect listeners from unwanted communication." Clearly, though, the state was compelled by its own constitution to defend the protesters' freedom of speech, whether that speech was wanted or not.

The justices' sympathies in this case were obvious, from their own treatment of anti-abortion protesters two months earlier, when they were hearing arguments in the Stenberg v. Carhart case regarding Nebraska's ban on partial-birth abortion.

According to WorldNetDaily reporter Julie Foster, the demonstrators who gathered in front of the Supreme Court building had sought approval for their signs from the Supreme Court Police. The police, having been told the size and nature of the protesters' displays, assured them that their demonstration fell within their First Amendment rights, and that therefore no permission was needed.

That was before the Supreme Court decided to exercise its power of regulation over the grounds of its building. On April 25, the very day the protesters and their signs arrived, Dale Bosley, the marshal of the Supreme Court, drafted "Regulation Six," which banned all signs which were larger than four feet by four feet, and prohibited the placing of signs side-by-side, as if to form a larger sign. By rule, the regulation had to be signed by Chief Justice Rehnquist in order to be implemented, and it was. Twenty-two anti-abortion activists were then arrested for placing five placards all in a row, and displaying a sixth, which measured four feet by six. The fiends.

If Regulation Six had been drawn up at any point before April 25, steps could have been taken to accommodate it. Of course, that was never the intent. The four by six poster, which showed a photograph of a decapitated human fetus, would have been banned all the same had it been two feet narrower, because the justices would have considered it an "unwanted communication." Any reasonable person would have to conclude that the regulation created on the day of the protest would have been written to ban whatever it was that the demonstrators had brought with them.

Had there been any question about the outcome of Hill v. Colorado, Regulation Six was the clincher. If Rehnquist and the other justices were willing to squash the inconvenient freedoms of abortion opponents, then how could they deny the state of Colorado the ability to do the same?

Most of the Supreme Court's abortion-related rulings are destined for infamy, but its decision to strike down Nebraska's ban on partial-birth abortion offers such a tortured rationalization that it has reserved a special position alongside Harry Blackmun's "penumbra of liberty."

The Court made two separate objections to the Nebraska law. Each of them is clever in its own way, but together, they clumsily betray the Court's duplicity. On one hand, the majority and concurring opinions complain that the law in question is unconstitutionally vague. On the other, they lean on the precedent of Roe v. Wade, which found in the Constitution an unstated and extremely vague "right to privacy." Justice Blackmun seemed to believe that this extra-constitutional membrane was collectively secreted by the First, Fourth and Fifth Amendments at some point in the mid-twentieth century.

The challenge to the ban was filed by Nebraska abortionist Leroy Carhart, who argued that its definition of a partial-birth abortion -- "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery" -- was too broad. His contention was that the law might apply not only to partial-birth abortions (sometimes referred to as "dilation and extraction" or "D&X" abortions), but also to the much more common second-trimester dilation and evacuation, or D&E procedure.

In Hill v. Colorado, Justice Stevens wrote that, "The fact that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance." In Stenberg v. Carhart, though, he concurred with Justice Stephen Breyer's majority opinion, which accepted Carhart's complaint. He apparently changed his mind at some point during the day of June 28, when the rulings on both cases were announced.

The crux of Carhart's challenge was that, during a D&E abortion, in which a fetus is dismembered inside the mother, the abortionist must pull an arm or a leg out into the birth canal in order to tear it off, while the rest of the fetal body is braced against the uterine wall for leverage. Hence the procedure is subject to the Nebraska law, since it involves partial removal of the fetus before killing it.

This argument is shredded by Justices Anthony Kennedy and Clarence Thomas in their separate dissenting opinions, in which each of them points out that the term "delivery," in the context of the Nebraska law, must require that the fetus be removed anatomically intact. There is no basis, either in medicine or in the law, for characterizing a dismemberment as a delivery. Justice Thomas points to Webster's definition of "delivery" as "to assist in giving birth." There is no circumstance under which that is done limb by limb.

The second objection was that the law made no exception to preserve a woman's health, as is required by Roe v. Wade. Since the accompanying Doe v. Bolton ruling defined "health" to encompass "all factors -- physical, emotional, psychological, familial and the woman's age," a health exception would preemptively nullify the law. However, D&X abortions do not fall within the parameters of Roe, since that decision let stand a Texas law forbidding the killing of a child in the process of being born.

That didn't discourage Breyer and the other justices in the majority, because they'd carved out the fallback position that enacting such a ban without a health exception would impose an "undue burden" on a woman's access to abortion, and that it therefore violated the law as shaped by the 1992 Casey v. Planned Parenthood case. Strange, the same justices who said the concise language of the Nebraska law was too vague seem quite confident that they understand precisely what is meant by "undue burden."

The four cases examined here will prove to be critical in determining the restrictions, if any, on judicial power, and the relevance of the Constitution to current law. That being so, it is as expected that these decisions have divided the justices along a deep philosophical fault line.

In each case, Justices Scalia and Thomas have voted in the minority, in defense of the Bill of Rights, and of constitutional restraints on judicial power. Justices Stephens and Breyer, along with Justices David Souter and Ruth Bader Ginsburg, voted in a block, consistently granting themselves the power to redefine the Constitution, and stepping out of their proper jurisdiction whenever anyone does anything which they personally feel is inappropriate. Not only did the four of them vote in the majority in all these cases, but they also formed the four-member minority in Boy Scouts of America v. Dale, which would have made the membership rules of a private organization the business of the federal government.

For the Constitution to ever prevail, Scalia and Thomas must succeed in persuading all three of the remaining justices to join them for a 5-4 majority. The liberal justices need only to capture one vote out of three. Those odds add up to a lot of liberal decisions.

With two or three nominations likely in the next presidential term, the upcoming election has the potential to overturn the liberal majority in the Supreme Court, or entrench it for decades to come. Skeptics may doubt whether George W. Bush, who reacts to the term "litmus test" as if he had been accused of something illegal, has either the nerve or the conservative principles to follow through on his promise to appoint "strict constructionists" to the highest court. One thing they can be sure of, though, is that Vice President Gore would appoint more liberal activists like Clinton appointees Ginsburg and Breyer.

To be sure, Republican presidents have a poor record where Supreme Court nominations are concerned. Reagan appointees Anthony Kennedy and Sandra Day O'Connor have drifted leftward ever since being confirmed, perhaps due to the temptation of power, since judges are able to assume more power simply by thinking as liberals. Less understandable is the elder Bush's appointment of David Souter, who was so obviously a liberal from the outset that he didn't even bother getting a clean shave before his confirmation hearings. We can't know for sure that W. would make any wiser a choice, but we do know that, when asked in an NBC interview which justices he admired most, the two names he mentioned were Antonin Scalia and Clarence Thomas.

Left-wing groups like People for the American Way take him at his word, and are therefore issuing hysterical warnings about the possible impact of a Scalia-Thomas majority in the Supreme Court. Their fear is that a conservative Court would tear away phrases like "freedom of choice" and "separation of church and state," and look instead at the original language which has been misshapen into those slogans over time.

Perhaps Gov. Bush, with his conciliatory tone and occasional Third Way tendencies, would not be liberals' worst nightmare, but it's an encouraging sign that he's got them tossing and turning already.

Return to Shinbone

 The Shinbone: The Frontier of the Free Press 

 Mailbag . Issue Index . Politimals