Supremely scary.

Supremely scary.

Supremely scary.

The law, lawyers, and the court.
Oct. 20 2004 7:06 PM

Supremely Scary

The sudden outbreak of Supreme Court horror stories.

A flood of scary Supreme Court stories has arrived just in time for Halloween. These stories come in one of two flavors:

1. The "Creepy Judicial Activists" stories, as seen this week in the Boston Globe, the Boston Globe again, and the Washington Times.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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2. The "Bush/Kerry Could Reshape Court in Hideous New Ways" stories, now playing in the Atlanta Journal-Constitution, the Dallas Morning News, the  Washington Post; the New York Times, the New York Times again, Newsday, the San Francisco Chronicle, and the Denver Post (to name just a very few).

What happened to make the composition of the Supreme Court the sexy new election topic this week? During the debates, the candidates offered up newsworthy responses to queries about the Supreme Court. And the GOP made the tactical decision to ditch moderate voters and galvanize Bush's base.

Nothing riles that base up more than abortion. That's why Bush's answer to the Supreme Court appointments question in the second debate referenced the Dred Scott decision as emblematic of "activist" judging. (There Bush stood … casting about wildly for the most activist Supreme Court decision he could find, and then it came to him: Bush v. Gore! "Wait! Can't say that … think of another case, any case ... ") Dred Scott actually represented something quite the opposite of judicial activism. That case was a good example of "originalist" interpretation or "strict construction." And as Timothy Noah observed, the only other explanation for the Dred Scott reference was that it was code for: "Bad decisions must be overturned, and Roe v Wade is going down!"

Bush's judicial-activism cry triggered a whole slew of scary court stories: anti-Bush stories about how Clarence Thomas has never met a precedent he's unwilling to reverse (twinned with the rumor that Thomas would be Bush's choice for chief justice) and anti-Kerry stories about the how Democrats live only to legislate through the courts. Now, in a double-reverse twist, there are scary court stories defending judicial activism, scary stories defending the new judicial activism (i.e., the mind-boggling insistence that overturning Roe wouldn't really be activism), and scary court stories suggesting that you can't even tell the old activists from the new activists anymore, anyhow.

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The other issue raised in the debates was the great litmus test test—in which each candidate accuses the other of using abortion as a litmus test for nominees. Except this year, John Kerry sidestepped the accusation—saying that if appointing judges who would actually follow the law constitutes a litmus test, he probably does have one. "I'm not going to appoint a judge to the court who's going to undo a constitutional right," Kerry said. Bush said he would not use a litmus test,insisting again that he wouldn't appoint any "activists" and thereby making it clear that in his mind Roe isn't law in the first place.

This exchange led to the flurry of articles suggesting what a Bush court or Kerry court would or would not do, with the New York Times editorial by Adam Cohen describing the bleak, Dickensian legal landscape that would follow a Bush win: "Abortion might be a crime in most states. Gay people could be thrown in prison for having sex in their homes. States might be free to become mini-theocracies, endorsing Christianity and using tax money to help spread the gospel. The Constitution might no longer protect inmates from being brutalized by prison guards. Family and medical leave and environmental protections could disappear."

On the other side, Bruce Fein shrilled that "Mr. Kerry's election would mark the greatest menace to public confidence in the Supreme Court and enlightened constitutional law since President Franklin D. Roosevelt's ill-conceived court-packing legislation in 1937."

The biggest problem with all these scary court articles is that they frequently parrot the same handful of worn-out rumors and speculations as if they were the gospel: The next president will have a chance to replace "up to four justices," they all say. Why four? Because someone picked 80 as an age that is proximate to death—then consigned William H. Rehnquist, John Paul Stevens, and Sandra Day O'Connor to one-foot-in-the-grave status. In the same vein, most articles then somberly describe Ruth Bader Ginsburg as a "cancer survivor," even though she has been cancer-free for years, and to the untrained eye, she looks more vigorous than ever.

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Each story proceeds to characterize the president's appointment powers as virtually limitless, rarely acknowledging the confirmation battles that would constrain any president's choices. In one of the most insightful articles on reshaping the courts this fall, Tony Mauro suggests that there may be no national legal conflagration on the horizon at all.

This isn't to say the court isn't a voting issue. It is and it should be. The candidates have made it clear—in ways spoken and unspoken—that they value extremely different types of justices. But in talking about it, it's worth focusing on the facts we do know, as opposed to cycling ever deeper into speculation over the unknowable. While we cannot know how many justices will step down, or who will replace them, we do know that justices are unpredictable: David Souter was supposed to be a hard-line right-winger. We also know a lot from Kerry's record in the Senate. For instance, he voted to confirm the very conservative Antonin Scalia and to reject Souter.

We can also learn an awful lot from Bush's 200-some choices for the lower federal courts—and this is really what we should all be talking about. If you're looking for a litmus test, look here: According to NARAL, only two among the more than 200 candidates nominated by Bush have a public record showing even the slightest favor for abortion rights. The number of his appointees who worked for pro-life groups is not insignificant.

It's worth talking about the fact that Bush appointees to the lower federal courts include people like Jay Bybee—author of one of the infamous Justice Department "torture memos" (suggesting torture as a permissible interrogation technique, accepted U.S. and international law notwithstanding). He also continues to promote Priscilla Owen, a Texas Supreme Court justice, whose refusal to grant minors a parental bypass in abortion cases prompted her then-colleague on the bench to describe her position on an abortion case as "an unconscionable act of judicial activism." That colleague was Bush's current White House counsel, Alberto Gonzales. Another winner from Bush's judicial nominees? Leon Holmes, who opposes abortion, even for rape victims, based on his own statistical certainty that "conceptions from rape occur with approximately the same frequency as snowfall in Miami."

There is a fascinating and arcane scholarly debate to be had about the meaning of judicial activism and the value of stare decisis. But this election won't decide that. And there's a fun fantasy baseball league to be imagined for either a Bush or Kerry court, and this election won't determine that. But there is good, reliable information on what each candidate thinks about the rule of law, and what makes for a good judge. That last question alone should be enough to decide the election.