Just One More Justice

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At the polls last November, conservatives and libertarians who vote according to conscience had two options: Bob Barr (Libertarian Party) and Chuck Baldwin (Constitution Party).  Combined, these two garnered only 719,655 votes—a paltry amount compared with John McCain’s 59,082,002.  For those who believe in smaller government, fiscal responsibility, and individual liberty, the 2008 election was the perfect opportunity to reject the GOP’s latest insult.  Why, then, did 59 million Americans hold their noses and pull the lever for McCain?

The answer is complicated, especially in a system that discourages third parties.  Yet, while systemic barriers tell us part of the story, we must not discount the issue of judges.  Other than a dislike for the Democratic Party, control of the federal courts—especially the Supreme Court—has become the central issue that has garnered sizeable conservative and libertarian votes for Bush I, Bob Dole, Bush II, and now McCain.

In debates with fellow travelers about McCain, I often heard the following: “Sure, he’s not perfect, but if we get one more Roberts or Alito on the Supreme Court, we can rein in some of the real excesses of government and maybe even overturn Roe.”

Republicans have controlled the White House for 28 of the last 40 years and have nominated seven of the nine sitting Supreme Court justices.  (Actually, four years should be tacked on to the Republicans’ time of possession because Jimmy Carter had no opportunity to appoint a justice.)  Despite the GOP’s control of the Court, we have seen few watershed decisions curbing government power or protecting individual rights.  In fact, just the opposite has occurred.

For example, in Gonzales v. Raich (2005), a landmark Commerce Clause case, the Court decided that Congress’s power to regulate local, intrastate matters is boundless.  The question presented in Raich was whether Congress could prohibit the medicinal use of cannabis via the federal Controlled Substances Act when the cannabis at issue was grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crossed state lines, and never was sold in the stream of commerce.  Even conservative lion Antonin Scalia concurred in the judgment.

Another example is Kelo v. City of New London (2005), in which the Court deleted the “public use” requirement from the Fifth Amendment and approved government taking and transfer of private property when the transferee promises to make a more productive use of it than the original owner did.

And let’s not forget Grutter v. Bol­linger (2003), in which the Court held that the Constitution does not prohibit the University of Michigan’s law school from using race in admission decisions to obtain “the educational benefits that flow from a diverse student body.”  So much for the color-blind Constitution.

Use of international law has also been on the rise in recent years.  When prohibiting the death penalty for murderers who are mildly mentally retarded, the Court, in Atkins v. Virginia (2002), cited a plethora of foreign decisions in support of its ruling.

Not so fast, a loyal Bush or McCain voter might say.  What about District of Columbia v. Heller (2008), in which the Court held that the plain language of the Second Amendment recognizes a personal right, belonging to “the people,” to possess firearms?  Without Dubya’s nominations of Roberts and Alito, the right to bear arms might be confined to service in state militias or the National Guard.

Undoubtedly, Heller was correctly decided, and President Bush’s two Supreme Court nominees seem to be excellent jurists.  But in the greater scheme of things, Heller has not made a difference in the lives of ordinary Americans.  Reasonable gun-control laws are still permissible; Heller simply struck down Washington, D.C.’s ridiculous ban on possession of usable handguns in the home.

Even if one considers Heller a home run, surely it cannot outweigh the multiple strikeouts from the Bush administration that have adversely affected millions of lives.  On the economic front, Bush gave Americans a ten-trillion-dollar national debt that is 70 percent of GDP, the highest percentage since 1955.  Good-paying manufacturing jobs continued to move overseas; America has lost three million of them since 2001.  For those who still have jobs, median incomes fell by $1,000 between 2000 and 2006.

With the signing of the Medicare Prescription Drug Modernization Act, President Bush set in motion the largest expansion of the welfare state since 1965.  The law is expected to cost $1.2 trillion over the next ten years.

The federal government’s power over local schools has also increased.  President Bush was a champion of the No Child Left Behind Act, which imposed outcome-based education in exchange for federal funding.

The USA PATRIOT Act of 2001 was a result of President Bush’s ongoing “War on Terror.”  Under this legislation, government investigators can more easily eavesdrop on our internet activity, and law-enforcement officers are now in the “domestic intelligence” business.  Precious civil liberties took a backseat to security.

Of course, the Bush measure that will have the most lasting effect is the Emergency Economic Stabilization Act of 2008, which authorizes the secretary of the treasury to spend billions to purchase and manage “troubled assets” from financial institutions.  This is the largest government intervention in the private economy in the history of the United States.  It makes FDR’s New Deal and Truman’s seizure of the steel mills look like small potatoes.

While the shaping of the judiciary is one issue a voter should weigh in casting a presidential ballot, it pays to remember that the Supreme Court is not the engine behind American government, nor is it a suitable vehicle to bring about long-term change.  The elected branches of government are the real seats of power and the mechanisms that reshape society.  Conservatives and libertarians who have voted in election after election for left-leaning GOP presidential candidates in hopes of controlling the courts have received a dismal return on their investment.  In so voting, they have turned a blind eye to the massive expansions of federal power and deleterious economic and social policies that GOP candidates and presidents have pushed.

The Obama presidency will be nothing new.  It represents the same opportunity that we’ve had all along, since Republicans haven’t changed the world through the appointment of judges—and were never going to.

This article first appeared in the January 2009 issue of Chronicles: A Magazine of American Culture (Cultural Revolutions).

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