READY TO ELECT THE NEXT SUPREME COURT?

Earlier today I talked about a radio interview hate talk radio host Laura Ingraham did with Republican religionist ayatollah Jimmy Dobson. The overall topic was how loathsome Giuliani is, not just to normal Americans, but to far right extremists-- albeit for different reasons-- as well. Ingragham wanted to know if Dobson would support him if it looked like he was the only one who could beat the dreaded Hillary (or Obama); he said he wouldn't. "I would rather lose," the pompous and bigoted Dobson spouted, "than throw my vote toward somebody who not only doesn't support the sanctity of human life but is not really in favor of marriage... I'm really sick of the economic Republicans who never were convinced of the moral issues anyway and they just want us to compromise." Ingraham followed up by offering a supposition-- not very far fetched-- that Giuliani comes on hands and knees to Dobson and swears, in confidence, that he believes Roe v Wade should be overturned and that if he's elected he'll only appoint ultra-extremist judges., clones of Clarence Thomas. "What if he said that to you?" she asked.

Dobson: "I would not believe him... because he's got such a long history and he wants to be president, he wants power, I think, passionately and he will say what he has to say to get elected; so I would not trust that."


Of course if he could believe him... more Thomases. What more would any deranged authoritarian, mistrustful of democracy, want than more Clarence Thomases. He's their ideal. The man widely considered to be the absolutely stupidest person to ever sit on the Supreme Court of the United States, "Thomas sat through 68 hours of oral arguments in the Supreme Court’s current term without uttering a word... In nearly 16 years on the court, Thomas typically has asked questions a couple of times a term."

A recent tally by McClatchy Newspapers underscored this point: Thomas has spoken 281 words since court transcripts began identifying justices by name in October 2004. By contrast, Thomas’ neighbor on the bench, Justice Stephen Breyer, has uttered nearly 35,000 words since January.

The Georgia-born Thomas also has chalked up his silence to his struggle as a teenager to master standard English after having grown up speaking Geechee, a kind of dialect that thrived among former slaves on the islands off the South Carolina, Georgia and Florida coasts.

I was just visiting one of those islands, St. Simons and I found the folks-- of all races-- friendly, engaging, talkative and easy enough to understand. My theories about Thomas' reticence have more to do with the self-awareness he's acquired of how unsuited he sounds, intellectually, when he does attempt to address weighty legal issues than with his accent. Never has anyone been less suited to be on the Supreme Court than Clarence Thomas. They could just as well give Scalia two votes. But that's what makes him so ideal to freaks like Ingrahgam and Dobson.

And, make no mistake, the presidential election of 2008 will determine if the Supreme Court for the next two decades will be a real Court or a Court of Clarences.

The consequences of two or three moderate-to-liberal seats turning over will be either minor (under a Democrat) or potentially massive (under a Republican). As Marty detailed in this earlier post, many areas of the Court’s jurisprudence could be pushed in a substantially more conservative direction by a single vote. Marty’s point was to identify the principal doctrines and decisions that are amenable (or vulnerable, depending on your perspective) to overruling or to other significant shifts as a result of Justice O’Connor being replaced by Justice Alito.

But for those decisions that do retain their vitality after the recent appointments – most likely as a result of the effect of stare decisis, though perhaps because of the vote of Justice Alito – the same prospect for radical change arises from the potential shift of yet another vote or votes to the right. For example, though it appears that Justice Kennedy will read Roe v. Wade narrowly, he is for the time unwilling to overrule it. Justices Scalia and Thomas are clear votes in favor of overruling. The Chief Justice and Justice Alito are defenders of stare decisis, but squarely presented with the question-- and unable to reach the result they believe is right by narrowing Roe further-- it seems likely that they would vote to overturn it, as it is a decision that (insofar as their pre-judicial statements are instructive) they believe is essentially lawless...

As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted.

I'll refer back to this post when I'm contemplating how dissatisfied I am when DLC hack Hillary Clinton is the Democratic nominee.