Wednesday, June 16, 2004

Three Little Words

Michael at Musing’s Musings took note of Supreme Court Justice Clarence Thomas’s opinion in the recent non-ruling in Elk Grove Unified School District v. Newdow, aka the “Under God” case in which a father sued to remove the phrase from the Pledge of Allegiance by claiming it was in violation of the First Amendment’s Establishment of Religion clause. Justice Thomas allowed as how he “would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.”

I dropped the following comment to Michael:

Well, then, based on Thomas’s logic, any state could establish a state religion. And if that applies to the Establishment clause, then it applies to the rest of the First Amendment and the rest of the Bill of Rights, for that matter. So Florida, for example, could pass a law making Southern Baptist the state religion and enact laws that would restrict the freedom of the press since they would not be “federal” laws.

I defer to those who have studied Constitutional law to interpret what Justice Thomas means when he says the Establishment Clause “resists incorporation,” but to me it sure sounds like he’s saying that states are free to write their own constitutions and incorporate whatever they like into their version of the Bill of Rights. Legal arguments aside, it sends a powerful message to anyone who has doubts about who should win the election in November.

George W. Bush has said repeatedly that he will appoint judges who are like Thomas and Antonin Scalia to the courts. Justice Scalia’s record is well-known: he is slightly to the right of Jesse Helms when it comes to rulings regarding personal freedoms and the rights of minorities. Justice Thomas’s record is less well-known; he never speaks or asks questions during Court sessions, prefering to sit there like a garden gnome (a comparison to another piece of yard statuary came to mind, but I let it pass because it would be politically incorrect) and concur with Justice Scalia and Justice Rehnquist in virtually every case. So we can assume that if Bush gets a second term and a vacancy opens on the Supreme Court, we will see an attempt to appoint like-minded justices. An appointment to the Supreme Court is for life – Chief Justice Rehnquist was originally appointed to the court by Richard Nixon and promoted by Ronald Reagan. We have dodged the bullet so far – the last vacancy was under Clinton – but the current Court term ends in two weeks. Retirements are often announced at the end of the term, and several of the more moderate to liberal members of the court are getting up there in years.

So while presidents may come and go, their legacy lives on after them and the consequences of a Supreme Court vacancy can change the course of the nation. Anyone who may have doubts about John Kerry or quibble with his stand on the war in Iraq should keep three little words in mind when they go into the voting booth in November: The Supreme Court.