Missing: A Media Focus on the Supreme Court

big media themes about the 2004 presidential campaign have reveled
in vague rhetoric and flimsy controversies. But little attention
has focused on a matter of profound importance. Whoever wins the
race for the White House will be in a position to slant the direction
of the U.S. Supreme Court for decades to come. 

on the top court tend to stick around for a long time. Seven of
the current nine were there a dozen years ago. William Rehn- quist,
who was elevated to chief justice by President Reagan, originally
got to the Supreme Court when President Nixon appointed him a third
of a century ago. The last four justices to retire had been on the
high court for an average of 28 years. 

are very likely during the next presidential term. Rehn- quist,
79, is expected to step down. So is Sandra Day O’Connor, 74,
a swing vote on abortion and other issues that divide the court
in close votes. Also apt to retire soon is 84-year-old John Paul
Stevens, who usually votes with the more liberal justices. “The
names of possible Bush or Kerry appointees already are circulating
in legal circles,” the Pittsburgh Post-Gazette reported
in August, “and there is virtually no overlap between the lists.” 

should be no doubt about the kind of Supreme Court nominee that
President Bush would want. “In general what he’s going
to look for is the most conservative Court of Appeals judge out
there who is young,” says David M. O’Brien, a professor
of government who has written a book about the Supreme Court. “Those
are the top two priorities.” 

has made clear his intention to select replacements akin to hard-right
Justices Antonin Scalia and Clarence Thomas. Writing in the Washington
on September 14, conservative attorney Bruce Fein predicts,
“The winner of the impending presidential sweepstakes will
likely appoint from one to three new justices.” He foresees
that if Bush wins and the seats held by O’Connor and Stevens
become vacant, “constitutional decrees in pivotal areas concerning
presidential war powers, church-state relations, freedom of speech,
the death penalty, the powers of the police and prosecutors, racial,
ethnic and gender discrimination, and private property will display
a markedly more conservative hue.” 

political agendas benefit from the claim that the Supreme Court’s
1973 abortion-rights decision, Roe v. Wade, is not in jeopardy.
But as Michael Dorf, a law professor at Columbia University, wrote
this summer, “Three justices—Rehnquist, Antonin Scalia,
and Clarence Thomas—remain committed to overturning Roe.
Meanwhile, two of the Court’s three oldest members—justices
Stevens and O’Connor—are part of the six-justice majority
for recognizing a constitutional right to abortion. Should President
Bush have the opportunity to name anti-Roe successors to
these two justices—or to any two or more of the six justices
who oppose overturning Roe—there is little reason to
doubt that he would seize it. The result would be a Supreme Court
majority for eliminating the constitutional right to abortion.” 

Bush and Kerry are inclined to understate the importance of potential
new Supreme Court picks as they try to attract swing voters, Professor
Dorf is unequivocal: “A Bush victory would greatly increase
the likelihood that Congress and the state legislatures will be
able to ban most abortions at some point in the next four years.
In contrast, a Kerry victory would almost surely preserve the status
quo of legal abortion prior to the third trimester of pregnancy.” 

Bush’s impacts on the judiciary have been appreciable. Like
the members of the Supreme Court, the federal judges on appeals
and district court benches are appointed for life—and in less
than four years, Bush has chosen almost a quarter of all those judges

Lithwick, a legal analyst with Slate, notes, “Bush has
already had a chance to massively reshape the lower federal bench.
He’s now filled 200 seats”—with judges who’ll
have far-reaching effects. “He has certainly put a lot of people
onto the federal bench who have sort of litmus tests on issues like
abortion and on issues like civil rights. And I think we are going
to see—in the far future, but not today—the fallout of
a massive, massive influx of quite conservative jurists who’ve
been put on the bench in the last four years.” 

opponents of abortion rights, civil liberties, gay rights, and other
such causes work to gain a second term for George W. Bush, they
try not to stir up a mass-media ruckus that might light a fire under
progressives about the future of the Supreme Court and the rest
of the federal judiciary. Likewise, those on the left who don’t
want to back Kerry even in swing states are inclined to dodge, or
fog over, what hangs in the balance. Kerry is hardly a champion
of a progressive legal system, but the contrast between his centrist
orientation and the right-wing extremism of the Bush-Cheney regime
should be obvious. It’s too easy to opt for imagined purity
while others will predictably have to deal with very dire consequences. 

popular constituency of the Bush people, a large part of it, is
the extremist fundamentalist religious sector in the country, which
is huge,” Noam Chomsky said in a recent interview with David
Barsamian. “There is nothing like it in any other industrial
country. They have to keep throwing them red meat to keep them in
line. While they’re shafting them in their economic and social
policies, you’ve got to make them think you’re doing something
for them. Throwing red meat to that constituency is very dangerous
for the world because it means violence and aggression, but also
for the country, because it means harming civil liberties in a serious
way. The Kerry people don’t have that constituency. They would
like to have it, but they’re never going to appeal to it much.
They have to appeal somehow to working people, women, minorities,
and others, and that makes a difference.” 

added: “These may not look like huge differences, but they
translate into quite big effects for the lives of people. Anyone
who says ‘I don’t care if Bush gets elected’ is basically
telling poor and working people in the country, ‘I don’t
care if your lives are destroyed. I don’t care whether you
are going to have a little money to help your disabled mother. I
just don’t care, because from my elevated point of view I don’t
see much difference between them.’ That’s a way of saying,
‘Pay no attention to me, because I don’t care about you.’
Apart from its being wrong, it’s a recipe for disaster if you’re
hoping to ever develop a popular movement and a political alternative.”

Norman Solomon
is co-author, with Reese Erlich, of
Target Iraq: What the News
Media Didn’t Tell You