Sandra Tosses Cat into Pigeon Coop

I've got another piece from Terry McKenna today, below; you'll see it's as topical as you can get. The M-80's and other noisemakers that hit the streets last night are as nothing compared to the effect that one woman's retirement is having on this nation, and indeed around the world.

Just google the phrase "Supreme Court" and you'll see links to news flashes that include words like "shock," "fury," "battleground," "fight," and "showdown." Yes, ladies and gentlemen, the ordure has struck the oscillating blades, and the mass media mob is obsessing once again. Who needs to think about the body count from Iraq or the Downing Street Memo when there's a high-noon hootinanny about to happen over a court vacancy?

I've always been uncomfortable with the Supreme Court...it's a language thing. The executive branch of our government is presided over (by a President); the legislative body is a Congress; but the cheese of the judiciary is Supreme. I find that disturbing; and if you think the thrill-seeking mass media aren't affected by that word, then keep your eye and ear on the news stream for the next few weeks (if you can stomach it), and you'll see what I mean.

Why are these folks the only major non-military government officials that wear uniforms? Are these nine people part of a secular court of law, or are they the faculty of Hogwarts School of Witchcraft and Wizardry? How did they get all this power? A pack of octogenarians in altar boy outfits, and they are the final court of appeal on everything from the Grokster to abortion rights. Very frightening indeed—especially if the neocon whackos are allowed free reign on this and future appointments.

All right, let's hear an intelligent discussion of this issue now: the blog is yours, Mr. McKenna.

With the retirement of Sandra Day O'Connor, everyone is talking about the Supreme Court. Conservatives want George Bush to replace O'Connor with someone who will interpret the constitution strictly as written. Liberals want Bush to appoint a moderate. Genuine moderates are being ignored.

But since I have this space (through the intercession of Mr. Donohue) I'll spout the moderate view. And no, I am not trained in the law, but maybe that allows me some freedom.

Conservatives used to talk about the importance of a strict construction of the constitution; in recent decades they've substituted the phrase originalism for strict constructionism. This presumably removes any need to determine the context or even the intent behind paragraphs written two centuries ago - you more or less interpret the constitution as written.

But there is a problem with reading the constitution without the full context of both the framer's intent and the succeeding history. For example, Andrew Jackson was a strict constructionist and thought the constitution did not allow a national bank. Eighty years after he let it dissolve, it was re-established. Does it really matter now whether a scholar can show that Jackson was right? Would it be good to dissolve the Fed? No. But looking to the framers for that answer is to miss the point. The American constitutional democracy was an experiment. The constitution that was drafted was a compromise intended to win support for a stronger federal government - ONE THAT WAS NEEDED TO PUT AN END TO THE CHAOS ENSUING FROM THE ARTICLES OF CONFEDERATION. My point is that we are here now, we have a strong national bank, civil rights, social security etc. We can't put the genie back into the bottle.

The left also needs to remember how we got here. The Warren Court had to realize that it was taking the country down a left turn when it ruled as it did in a number of famous cases in the '50s and '60s. The two most famous decisions concerned school segregation and school prayer. Although reasonable, the Brown decision was extrapolated to force school busing as a tool of desegregation, and via a new concept “de facto” segregation, school districts were re-engineered to force whites and blacks to mix. A noble idea, but it created the white flight that eventually stripped white working class students from most city schools - so in some ways “Brown” has been a hollow victory. And the school prayer decision created a permanent subclass of white Christians who oppose public schools - this is the group who most favor vouchers and home schooling.

They are a block that is easily manipulated by the right to form useful voting majorities. In other less political rulings: the court and its successors overruled state residency requirements for welfare; censorship; and created a right to abortion. (Can we lay the blame on the courts for the current sad state of many cities - to the end of residency requirements? Hmmm...good question - but what about the interstate highway system?)

Sadly, the net result of the court's rulings was to expose a divide that continues to this day and will not be resolved even if the next two justices are in the mold of Scalia and Thomas. But, if the right gets its way, it's likely that for at least a generation, issues like gay marriage and abortion will be returned to the states.

As a closing note, let me weigh in as being more in sympathy with the activist courts than with the conservatives. For me the tie breaker is “Brown.” In an America ruled in its social norms by “Jim Crow” it is clear that something had to be done. The Warren Court did it. We may not be faced with issues as large as those that faced the Warren Court, but if we are, I'm not sure that a more conservative court would serve us well.

—Terence McKenna