In nominating Samuel Alito to fill the new vacancy on the Supreme Court, the Bush administration has at once mended fences with its conservative base and taken a major step to tip the balance of power on our nation’s highest court to the extreme right.
Sound ominous? It should.
For many Americans the controversy surrounding the court nomination seems like a distant and lower-order concern compared to surging energy prices, low-wage jobs, pension shredding, the rising body count in Iraq and hurricane reconstruction. It seems like an inside-the-Washington-Beltway drama that is of little consequence to most of us who live beyond the corridors of political power.
Yet nothing could be further from the truth. Who sits on the court does matter and matters a lot.
Much of the buzz in recent months has spun around the fact that the future of Roe v. Wade — the landmark reproductive rights ruling — may very well hang on who fills Sandra Day O’Connor’s seat on the court. This is undeniable. No one should take lightly the dire consequences for millions of women, and their families, if Roe is overturned.
But it should also be noted that the new court will make other decisions as well that could either severely restrict or completely roll back the democratic rights and possibilities of labor, the racially oppressed, the disabled, gays and lesbians and people generally.
With Alito, the Bush administration has nominated a judge who comfortably fits into the right-wing extremist mold. Some of his supporters, like right-wing Washington Post columnist Charles Krauthammer, and even some who should know better like Linda Greenhouse of The New York Times, sugarcoat Alito’s judicial record, calling him “mainstream” or a “traditional” conservative.
Nothing could be further from the truth. Some of Alito’s opinions as a federal circuit court judge, in fact, were so extreme that they were rejected by the Supreme Court, including former conservative Chief Justice William Rehnquist.
In moments of candor, right-wing pundits admit that Alito will be a sturdy ally of right-wing justices Antonin Scalia and Clarence Thomas, joining them in their mission to push the legal framework prevailing in our country to the hard right.
Thus, what the Rehnquist court began, the Roberts court with Alito aboard will continue, but with a vengeance.
Since the 1960s the conservative movement — alongside the business community and sections of the ruling class — has bristled at what it calls the “rights revolution” that began with the civil rights movement and the subsequent passage of civil rights legislation in 1965.
The civil rights movement and the ensuing movements that it inspired led to a string of judicial decisions and related legislative measures (Roe v. Wade, the War on Poverty, disability rights rulings and legislation, affirmative action, Miranda, comparable worth pay, anti-discrimination laws) that expanded democratic rights for millions of people who until then enjoyed less than full citizenship.
For the conservative movement these landmark decisions were heresy. It claimed that with such rulings the court overstepped its constitutional authority, taking upon itself power that properly belonged to other branches or levels of government, especially the states (“states’ rights”). Instead, the conservatives insisted, the court should follow a “strict constructionist” or “original intent” reading of the Constitution. They derided what they called “judicial activism from the bench.”
There is a lot of smoke and mirrors here. Remember, it was the activist Scalia gang on the Supreme Court that overrode the Florida courts and “selected” Bush in 2000.
I would argue that the language of “strict constructionism” and “original intent” is fundamentally political sophistry and claptrap. It is increasingly a transparent attempt to conceal not just conservatives’ disdain for democratic rights, but also their desire to construct a system of laws and constitutional interpretation that creates a clear and unobstructed field for U.S. transnational corporations to have their way — to employ their political and economic power to ruthlessly exploit labor and nature, to maintain savage social and economic inequalities, to make war without popular consent, and to secure U.S. imperialism’s uncontested position at the top of the global pyramid of states.
Thus the battle over the composition of the court is of the same order of importance as the composition of Congress or who occupies the White House. It isn’t about abstract legalisms. Instead, it has an enormous bearing on the quality of our lives.
In view of the growing unpopularity of the Bush administration and the Republican Party, the political right is all the more determined to lock in its control over the highest court in our land for decades to come.
Two weeks ago our nation rightly celebrated the life Rosa Parks, whose act of defiance in the face of entrenched racist power triggered the “rights revolution” of the 1960s. To honor her name and to continue the democratic revolution that she initiated demands that every democratic-minded person and organization vigorously oppose the nomination of Samuel Alito to the Supreme Court.
Sam Webb (email@example.com) is national chair of the Communist Party USA.