Blast From the Past: The Supreme Court and the Conservatives: Avoiding Checkmate

Originally posted 21 July 2005.  The liberal side of this was dealt with yesterday.

Since the retirement of Justice Sandra Day O’Connor—to say nothing of the health problems of Chief Justice William Renquist—much of the buzz in the American press has been about whom President George Bush will nominate in her (their) place. Unfortunately the nomination of John Roberts hasn’t answered as many questions as one would like. Since the days of the Bork and Thomas nominations in the late 1980’s and early 1990’s, presidents have generally preferred to nominate “stealth” nominees to the Court, ones with scanty records for the Senate to shoot at. This one is squarely in that tradition. But what do we know? What does he believe? Is he really a conservative? Or are we looking at another David Souter, who waits in his Washington Valhalla while his New Hampshire house is bulldozed in the wake of Kelo vs. New London? Is Roberts a real nominee or just someone to wear the Senate down before he makes his real choice? This administration is perfectly capable of playing both chess and tic-tac-toe, and sometimes it’s hard to know which one they’re playing at any given time.

The basic problem for conservatives is simple. The drift of the courts has been towards interpreting/making the law in a liberal/elitist direction. We’ll discuss in our follow-up piece why this is so, but the effect is to dilute the Republican control of the Congress since 1994 and the predominantly Republican control of the White House since the late 1960’s, to say nothing of the conservative trend of the country at large. Control of the Supreme Court is central to the conservatives reversing this trend. In a nation where the rule of law is like winning to Vince Lombardi (it’s not everything, it’s the only thing,) long-term loss of control of the Supreme Court would lead to the undoing of the conservative agenda and of the conservatives themselves in public life. It would be checkmate on a large scale. The survival of conservatism in the U.S., and of the constituent groups that support it, hangs on their ability to place justices on the Supreme Court that will give them a receptive hearing.

Failure to do so leads to several options, none of which is very appetizing for conservatives or anyone else.

The first is what we would call the “neo-con” option, which would involve bypassing the judiciary altogether and imposing their agenda by executive fiat. Such an option would end democratic processes in the US as we know them. Given the conservatives’ power structure, this would involve the military, an option the left floated in the wake of the 2004 election. This explains why the liberals, though the “Yale model” of tolerant chaplaincy, are trying to dilute the evangelicals’ (an obvious ally in such an attempt) influence there, which has already created controversy in both the Navy and the Air Force.

The second is the “millet” option, an option most suited for the conservative Christian community. This would involve a general retreat into a closed community which would not venture into the outside world very much, either at school or in the military or wherever. The biggest practical challenge would be the constant fight with the various human service agencies over the rearing of children. On the broader view, the US, the heir of Enlightenment concepts of uniform laws for everyone, would find it hard to implement such a regime without detonating running persecution (as opposed to Canada, which allowed the Muslim community to implement shar’ia internally.) The Brits were reminded this morning, however, that a community with a high birthrate and bound together by belief is a tough nut to crack. On the other hand, after so many years of being told by its leadership that Christianity is both the road to advancement and the birthright of Americans, retreating into the corner would be a bitter pill to swallow.

The third option is the more probable: the politicisation of the judiciary would lead to a general loss of confidence in the system. Once people realise that the judiciary is the de facto legislature, and that laws are made “on the fly” for the benefit of the elites, they will look elsewhere for their survival. This would take two forms.

The first is a greater reliance on foreign sources of support. In this age of globalisation, it’s not difficult. Christianity is rapidly becoming a Third World religion and sending representatives through immigration to the U.S.; the native believers would end up the recipients of missions help rather than the givers. Takeovers like CNOOC’s ongoing struggle for Unocal would have a more sympathetic hearing in the US as people sought a counterweight to an untrustworthy government. Emigration would increase, creating a brain drain as people sought a new life in a world where the boundaries of prosperity are expanding. Finally—and a direct product of more rulings like Kelo vs. New London—we would experience capital flight, as an expanding government would erode property rights to finance its own aggrandisement.

The second would be a general breakdown in the use of the legal system to settle disputes and enforce public order. Americans are not used to a world where people took care of problems outside of the legal system to avoid being trapped in a system rife with bribery, arbitrariness and favouratism, but people in many cultures have been living this way for millenia. Such a chage would alter the face of American life forever, and not for the better.

These are the reasons why the conservatives need to shift the balance of the Supreme Court. In our next posting, we will look at the matter from the liberals point of view.

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