Wednesday, July 6, 2011

Bader? I hardly knew her!

The Associated Press covers the political pressure on Justice Ruth Bader Ginsburg to step down from the Supreme Court:

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

But Ginsburg could retire now and allow Obama to name a like-minded successor whose confirmation would be in the hands of a Democratic-controlled Senate.

Ann Althouse rephrases the request:

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

And it's a fair criticism. Most of the current "progressive" agenda, however well intentioned, is based on a blatantly illegal expansion of federal power beyond its Constitutional limits. I like the effects of antidiscrimination laws and relatively unfettered access to abortion, too, but the Constitution clearly leaves those matters to the states. The liberal strategy of ignoring the law and bringing all its fights straight to daddy in the White House relies on having justices in the Supreme Court who will collaborate in ignoring the Constitution they're charged with enforcing.

But of course, that's only half the story, isn't it? American politics, unfortunately, can't be fairly discussed without acknowledging that in practice it's a fight between Democrats and Republicans, who can also be relied on to ignore the Constitution where it doesn't suit their agenda (and to appoint SCOTUS justices who'll collaborate in same). The whole mainstream political system is complicit in turning the Supreme Court from a body dedicated to enforcing the law to a bunch of squabbling ideologues who are often more concerned with protecting their own policy preferences. With the stakes this high, expect a continuation of the trend of appointing inexperienced young believers, locking in the Court's bias for a generation.

Unless Americans spontaneously decide to stop voting for Presidents based on political agendas that have nothing to do with the President--which, let's be honest, is slightly less likely than getting a left-handed atheist lesbian of color in the Commander in Chief's seat--this russian-roulette game will continue indefinitely. The trends in America's increasingly intrusive laws for the foreseeable future will be dependent entirely on whether an Obama or a Huckabee holds the White House when the next two or three SCOTUS justices buy the farm.

Is that prospect really less terrifying than having Roe overturned and having to do the job right, state-by-state?

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