Elections will determine high court’s future direction

A review of U.S. Supreme Court decisions in the 2007-2008 term should be enough to convince doubters of the importance of a massive vote to end the far-right Republican rule in government.

While the nine justices often aligned ideologically, Chief Justice Roberts and Associate Justices Alito, Thomas and Scalia usually gave right-wing opinions. Justices Breyer, Stevens, Ginsburg and Souter gave more liberal opinions. As in previous years, one swing vote – that of Justice Anthony Kennedy in many cases – determined which way the decision would go.

Starting with the positive, a major victory for due process was Boumediene v. Bush where the high court ruled that prisoners being held by the U.S. at Guantanamo Bay, Cuba as enemy combatants have a habeas corpus right to challenge their detention in U.S. courts. At its essence, this 5-4 decision declared the Military Commissions Act, a key piece of the Bush administration’s assault on due process, unconstitutional. Liberal justices plus Kennedy made up the five-vote majority. Judging by the reaction of Bush administration cheerleaders, the Boumediene v. Bush decision was a major blow to the neoconservative project to undermine constitutional rights in the name of fighting terror.

But the news on the civil liberties front was not all good. Much trouble will result from the 6-3 ruling on Crawford v. Marion County Election Board that allowed the state of Indiana’s voter ID law to go ahead, in spite of clear evidence that the law is unnecessary and will disproportionately disenfranchise lower income, minority and elderly voters. Justices Souter, Ginsburg and Breyer dissented. The court also declared unconstitutional the so called “Millionaire’s amendment” which allowed opponents of wealthy candidates who finance their own elections extra leeway in raising campaign funds (Davis v. Federal Elections Commission). Here Kennedy’s vote, this time with the conservatives, once more broke the tie.

The death penalty came up in a few different cases with mixed results. In Baze v. Rees, the court voted 7-2 that Kentucky’s use of lethal injections was not unconstitutional, in spite of worry that it actually causes excruciating pain. The court voted 5 – 4 (Kennedy again being the swing vote) to prohibit the death penalty for the rape of a child, limiting the scope of capital crimes. And again, the court voted 7-2 (Snyder v. Louisiana) to vacate the death sentence of an African-American man because Blacks had been systematically excluded from the trial jury.

International law took a hit in Medellin v. Texas, when the court ruled 6-3 that the Vienna Convention, which requires signatory countries to inform foreigners of their right to communicate with, and get help from, their consulates when they are arrested, is not applicable in Texas, because although Congress ratified the treaty, it did not pass specific federal legislation to require state authorities to comply with it. And in Exxon Shipping Co v. Baker, the environment took a hit as the court radically reduced punitive damages inflicted on the petroleum behemoth because of the Exxon Valdez disaster of 1989.

Finally, the court ruled 5- 4 (DC v. Heller) that the strict gun control law of the District of Colombia is unconstitutional because it violates the Second Amendment to the Constitution. The conservative majority felt that this amendment guarantees the rights of all individuals to possess weapons, while the liberal dissenters believed that it meant that the people are allowed to form a militia.

The next president is more likely to have opportunities to replace liberal Supreme Court justices than conservative ones. The oldest, John Paul Stevens, a liberal, is 88 and is thus very likely to retire or pass away during the next administration. Liberal Ginsburg is 75, while right wingers Roberts, Alito and Thomas are the three youngest justices.

If a Republican (John McCain) sits in the White House, he is likely to fill slots vacated by liberal justices with right wingers. This could lead to a situation in which 5-4 progressive votes turn into 7-2 reactionary votes on a whole range of cases.