The Art of Stealth
Bruce Ackerman on the Supreme Court
The American Constitution is the oldest in the world, but appearances are deceiving. Over the past two centuries, the Supreme Court has given very different meanings to the grand abstractions and cryptic formulae of the Constitution, and in doing so has ratified a series of great transformations in American government. From age to age, the court’s decisions have revolutionised the relationships between the presidency and Congress, between the federal government and the states, and between the individual and the state.
We are reaching another crossroads. There hasn’t been a new appointment to the court since 1994, but this extraordinary period of stability is coming to an end. Eight of the nine justices are 65 or older, with the eldest well into his eighties. Chief Justice Rehnquist is suffering from a serious illness: even his recovery will not long defer the moment at which the court begins a sustained period of reconstruction.
A series of openings will force George Bush, the Senate and the American people to confront a new set of choices. When the last vacancies arose during the 1980s and early 1990s, liberalism was still a dynamic force on the court. But the last liberal justices retired more than a decade ago. Nobody on the bench is interested in reviving the strong egalitarianism of the 1960s, when the Warren Court was in its heyday. The present judicial spectrum ranges from moderate liberals to radical rightists, and Bush will be aiming to nominate candidates who will push the court’s centre of gravity further to the right.
There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change. The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.
The coming struggle over the Supreme Court has been gathering momentum for almost twenty years: the nomination battles over Robert Bork in 1987 and Clarence Thomas in 1991 were harbingers. But times have changed since these bitter contests. Bork was a cutting-edge neo-conservative of the 1980s, but his successors may well go far beyond him, striking down laws protecting workers and the environment, supporting the destruction of basic civil liberties in the war on terrorism, and engaging in a wholesale attack on the premises of 20th-century constitutionalism. Or then again, Bush may hesitate. Despite his professed admiration for neo-con jurists such as Antonin Scalia and Clarence Thomas, he may offer up genuine conservatives, such as Sandra Day O’Connor, who reject radical change as a matter of principle.
The job of the Senate is to make it clear to the American people which path the president is taking. Under the Constitution, the president’s judicial nominations are subject to the Senate’s ‘advice and consent’, and it deliberates under rules that give the minority party a special say. Unless 60 of the 100 senators agree to terminate debate, a minority can block a final vote by refusing to end discussion of the nominee on the floor. If, in other words, the Republicans cannot muster 60 votes to bring a minority filibuster to a halt, the president will be obliged to withdraw his nomination.
The stakes are very high and the Democratic minority should be careful. In the first instance it should determine whether the president has nominated a traditional conservative or a radical neo-con. Above all else, it must oppose any ‘stealth’ candidate whose record is so undistinguished that his judicial philosophy remains secret. Perhaps after hearing a neo-con nominee present his arguments before the Senate judiciary committee most Americans will support the case for radical change; perhaps not. But one thing should be clear: the Senate should not give its ‘advice and consent’ to a stealth revolution in constitutional law.
Constitutional law is a crowded field in America, and it might seem surprising that a president could pass over leading figures and nominate a cipher to the Supreme Court. But this is all too realistic a prospect. Clarence Thomas was a stealth appointment, and his performance on the bench reveals the remarkably destructive potential of neo-conservatism. A healthy constitutional system learns from its mistakes. The Senate didn’t really know what it was getting in Thomas: it has an obligation to prevent another stealth candidacy this time around. The story of stealth appointments and how they became attractive is an interesting one. It begins with President Reagan’s victory in 1984. During his first term, Reagan selected the conservative O’Connor, but his landslide re-election encouraged a frontal assault on the liberal judicial legacy. The retirement of Chief Justice Burger created the opportunity: Reagan promoted William Rehnquist to the chief justiceship, selecting Antonin Scalia as his replacement on the bench. Senate Democrats reacted sharply, but aimed their fire at the wrong target: in trying, and failing, to deprive Rehnquist of his (symbolic) promotion, they gave the neo-con Scalia a free pass on a vote of 98 to zero.
Encouraged by this bait and switch, Reagan used his next vacancy to confirm the triumph of neo-conservatism. Robert Bork was a distinguished scholar at Yale Law School before becoming a neo-con hero by firing the Watergate prosecutor Archibald Cox when other officials in the Justice Department refused to obey Richard Nixon’s order. He deliberately turned his Senate hearings into ‘a discussion of judicial philosophy’, with the aim of exposing the modern heresies that had brought the Warren and Burger Courts to such jurisprudential absurdities as Roe v. Wade. He proved astonishingly unconvincing. Bork’s defeat served only to confirm the breadth of popular support for the Warren-Burger Court’s interpretation of constitutional rights.
Reagan was a tough man to convince. He nominated yet another neo-con academic-turned-judge, Douglas Ginsburg, and challenged his antagonists to continue the struggle. But Ginsburg’s past use of marijuana caused a scandal, and Reagan reluctantly called it quits. He returned to the path of pragmatic conservatism with Anthony Kennedy, who passed through the Democratic Senate without resistance.
Wishing to avoid another decisive neo-con defeat, George H.W. Bush developed the art of the stealth candidate. The search was on for neo-cons whose public statements and writings were so insubstantial that they could not be Borked. Stealth has its own dangers. Bush thought he had a neo-con in David Souter, but he had been misinformed. He did a better job the next time. Clarence Thomas had arrived in Washington at the age of 31, and never left the Beltway thereafter, so his neo-con development could be carefully monitored. At 43, he had put in loyal service as chairman of Reagan’s Equal Employment Opportunity Commission, but had avoided clear-cut pronouncements on most major issues.
Democrats bridled at the thought of Thomas as Thurgood Marshall’s successor, but, when interrogated, the nominee simply stonewalled. He stated, incredibly, that he had never expressed a view about Roe v. Wade in conversation with anyone, ever. When confronted with his signature on a tell-tale document denouncing abortion, he blandly denied reading it. The stealth technique was working until Anita Hill came forward with her claims of sexual harassment and the Democrats came out swinging with a politics of personal attack. Whether Anita Hill or Clarence Thomas was telling the truth isn’t relevant. My point is different: Bush’s stealth strategy was failing to solve the Bork problem. Rather than paving a smooth path to the court, it was causing an escalating spiral of partisan warfare and personal attack. Thomas won by a vote of 52 to 48, but the entire affair set the stage for the ugliest features of the politics of the 1990s. Character assassination had worked with Douglas Ginsburg, and it almost worked with Clarence Thomas: who would be next?
President Clinton did not want to find out. He filled two seats during his first two years in office, when Senate Democrats outnumbered Republicans by 56 to 44. But he refused to nominate a liberal version of Bork who would proudly pledge to bring back the Warren Court; nor did he try to push the court leftward with stealth candidates. He nominated two seasoned professionals – Ruth Ginsburg and Stephen Breyer – with track records as moderate liberals.
If Clinton had played a more provocative game, the Republicans would have responded in kind – ideological warfare, personal attacks and die-hard opposition. And perhaps they would have succeeded: their filibuster against Abe Fortas had forced Lyndon Johnson to withdraw his nomination as chief justice in 1968. But they were happy to accept Clinton’s olive branch, and readily confirmed his nominees. Both sides had been sobered up by the vicious cycles of the 1980s: constitutional evolution, not revolution, would be the order of the day.
Bush has three options when the next vacancy to the Supreme Court comes up: he can nominate a seasoned conservative, a stealth candidate or a plain-speaking neo-con. The president has one fewer senator than Bill Clinton had: 55 Republicans in 2005, 56 Democrats in 1993. But his strategic position is the same. He doesn’t have the 60 votes needed to override a determined filibuster by the opposition, so nominating a neo-con will be risky. Since no one can predict what will happen in Iraq, he may well come to regret a decision to precipitate another cycle of bitter partisan warfare on the home front.
Yet the image of Reagan beckons. His followers have never forgiven the Democrats for rejecting Bork. Shouldn’t Bush heed their call to complete the great work that Reagan began? The simple answer is no. The president should face some hard facts: his 3 per cent margin of victory over John Kerry doesn’t remotely resemble Reagan’s 18 point knock-out over Walter Mondale. Although 1984 marked a decisive victory over liberalism, last year’s election revealed that the most liberal candidate since Mondale was able to run neck-and-neck with an incumbent Republican. Despite his sweeping popular mandate, Reagan’s effort to revolutionise the court led to a cycle of character assassination from which we are only now recovering, and this is not the time to begin the cycle again.
All this seems obvious enough, but Bush has already established himself as one of the great gamblers in presidential history. He may well spurn the counsels of prudent statesmanship, and try to succeed where his father and his hero – not the same man – failed. This is the point where a stealth candidate becomes alluring. It promises Bush the chance to complete the neo-con revolution, without risking a Bork II disaster. If Bush does play the stealth card, the Senate Democrats should respond with an unconditional filibuster.
Stealth candidates are especially pernicious because today’s neo-cons have so much to be stealthy about. It is a grave mistake to suppose that Roe v. Wade exhausts their agenda. Sweeping constitutional revolution, taking in three different agendas – religion, anti-regulation and terrorism – is what they have in mind.
First, religion. Abortion remains a live issue, as Senator Arlen Specter recently learned when he almost lost his chairmanship of the Judiciary Committee by publicly cautioning the president against a cave-in to the religious right on the subject. But if Bush nominates a Bork II, it will rapidly become clear that neo-cons see Roe v. Wade as merely a symptom of a much deeper jurisprudential disease. They want to reject the long-standing view of the Due Process Clause which authorises the courts to protect the fundamental rights of Americans to ‘life, liberty and property’. So far as the neo-cons are concerned, the due process tradition is the handiwork of a cabal of activist judges, who have used the grant of ‘liberty’ to impose their liberal agenda on the nation.
This is a gross distortion. Over the course of the 20th century, the judicial champions of fundamental rights were the pre-eminent advocates of judicial restraint. Justice Felix Frankfurter reconstructed the libertarian foundations of due process doctrine after the New Deal, but was also the modern court’s foremost practitioner of restraint. He passed the torch to Justice John Harlan, an Eisenhower appointee who was the Warren Court’s fiercest critic during its heyday, but also wrote a brilliant opinion which laid the due process foundation for married couples to use contraceptives. As he explained, the court had, for generations, understood the ‘liberty’ protected by due process to include ‘a freedom from all substantial arbitrary impositions’. In his view, a state statute criminalising contraception ‘involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of “liberty”, the privacy of the home in its most basic sense’. Since criminal trials centring on contraception would inevitably require the revelation of the most intimate details of marital life, Harlan joined the court in striking down such statutes. Harlan has died, but the due process tradition endures, and it has been conservative Republican appointees, not Democratic justices, who have taken the lead in further developing the implications of the due process right to privacy.
Looking at the broad range of cases, these conservative justices have been far more deferential to legislative decisions than Scalia and Thomas. Their defence of fundamental rights is part of a discriminating philosophy of judicial restraint. While leaving large areas open to democratic judgment, they have been unflinching in their defence of human freedom:
Had those who drew up and ratified the Due Process Clauses of the Fifth Amendment or the 14th Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
This eloquent statement comes from Justice Kennedy, in the Supreme Court’s recent decision in Lawrence v. Texas, striking down criminal sodomy statutes that have stigmatised and oppressed homosexuals for centuries. Kennedy was Reagan’s substitute for Bork, and is no liberal. But in dissenting from Lawrence, Justice Scalia, joined by Rehnquist and Thomas, treats Kennedy’s centuries-old understanding of due process with contempt, as the ‘product of a court, which is the product of a law-profession culture that has largely signed up to the so-called homosexual agenda’.
Scalia forgets that all exercises in judicial interpretation are the product of a ‘law-profession culture’. Only the court’s openness to professional critique keeps it honest, and distinguishes it from an organ of naked political power. And his claim that the court has signed up to the ‘homosexual agenda’ is characteristically extreme: the majority held that the state could not throw gays into jail, striking down the laws of 16 states that continued this barbaric practice. It did not require the states to provide civil unions, much less marriage, leaving these issues to democratic deliberation. Scalia’s intemperate attacks should not blind us to the ultimate question that the Senate faces: whether the nominee’s interpretation of due process will deepen or trivialise the nation’s constitutional commitments to freedom and equality.
The religious community has much at stake in upholding the due process tradition. For example, the Constitution does not explicitly guarantee the right of religious families to send their children to church schools. In 1925 the Supreme Court used the Due Process Clause to strike down an Oregon statute shutting the state’s parochial schools. The court’s words in Pierce v. Society of Sisters are worth remembering: the Constitution’s ‘fundamental theory of liberty’, it explained, ‘excludes any general power of the state to standardise its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognise and prepare him for additional obligations.’ The Scalia-Thomas rejection of the evolving due process tradition of liberty throws Pierce v. Society of Sisters into the dustbin of history along with Roe v. Wade and Lawrence v. Texas.
Some on the religious right may, however, choose to ignore their loss of fundamental rights since the neo-cons promise them a sweeping victory on a second front. The First Amendment declares that ‘Congress shall make no law respecting an establishment of religion,’ and the modern Supreme Court has understood this broad provision to prohibit government from endorsing religion in American public life. Justice Scalia would repudiate this long-established principle. He agrees that the state can’t favour one religion over another, but he doesn’t think that it is an ‘establishment of religion’ if government supports religion in general. In making this claim, he fails to consider that Baptists and Buddhists have very different visions of God, and would argue fiercely over the meaning of ‘religion in general’. It doesn’t take a political prophet to predict that the Christian sects with the most votes will come out on top, leaving a trail of bitterness behind.
Justice Thomas goes even further. He denies that the Supreme Court has any authority to require the states to respect the anti-establishment principle. As he points out, the Establishment Clause originally applied only to the federal government. But in stark contrast to all other justices of the modern era, he refuses to interpret the 14th Amendment’s Due Process Clause, passed in the aftermath of the Civil War, as extending the anti-establishment principle to the states. On his view, there is nothing to stop Utah from making Mormonism into the state religion, so long as other sects retain the freedom to huddle together in their private conventicles.
Such extremism should serve as a red flag for senators of both parties. If the president’s nominee professes admiration for Clarence Thomas, he should explain how the outright establishment of religion is compatible with the religious and moral diversity of 21st-century America. Even Scalia’s position marks a radical departure from the constitutional consensus of modern times. Since ‘religion’ doesn’t exist apart from particular religions, Scalia’s view would authorise politicians to make countless theological judgments as they transformed the character of public education, the provision of public welfare and much else besides.
The neo-con religious agenda is nothing short of revolutionary. The modern Supreme Court has consistently barred the state from endorsing religion, and it has protected each American’s right to make intimate decisions about sexuality, child-bearing and child-rearing. Neo-cons would reverse these priorities; they would strip away the constitutional right to privacy, and empower politicians to engage in endless theological disputes.
Judicial revolutions have happened before. The ghost of Franklin Roosevelt haunts our present discontents. In seeking to catalyse a neo-con revolution, Reagan and George H.W. Bush were travelling down the path marked out by Roosevelt during the New Deal. The only difference is that they failed and Roosevelt succeeded. During his second and third terms, he appointed seven New Deal justices who transformed the reigning vision of the Constitution. The aim of the anti-regulatory agenda is to reverse this New Deal revolution and to turn the clock back to the days when the Old Court regularly struck down social welfare legislation.
Under the Constitution, the Congress is granted a series of enumerated powers, and for centuries, constitutionalists have debated the extent to which it is up to Congress, or the Supreme Court, to decide when legislation goes beyond the scope of these limited powers. Before the New Deal, the court intervened aggressively to keep Congress in check. The great source of contestation was the provision granting Congress the power to regulate ‘commerce among . . . the several states’. The Old Court interpreted this broad phrase in a highly restrictive fashion. For example, when Congress banned the products of child labour from interstate commerce, it took a harsh view of this morally compelling act. The Commerce Clause, the court explained, could not be used as a platform for regulating labour conditions within the states, because they involved ‘manufacturing’, not ‘commerce’, and on the basis of this wordplay, the statute was held to be unconstitutional. Child labour could be controlled only by the states.
In case the states took up this invitation too enthusiastically, the Old Court also restrained its efforts to control free-market abuses. In contrast to the federal government, the states can regulate anything they like, but they can’t violate the rights protected by the Constitution. The Old Court interpreted these to include freedom of contract, and in 1905, famously invalidated a state law limiting the working week to 60 hours. Under its notorious Lochner decision, it was more important to protect the sweatshops’ freedom of contract than the state’s interest in protecting workers’ health. These laissez-faire rights remained basically intact until they were swept away by the seven Roosevelt appointees.
Roosevelt did not make his revolution through stealth nominations. By the time he filled his first vacancy with Hugo Black in 1937, the New Deal was already in place: 76 out of 96 Senators were Democrats, and even some of the Republicans were liberals. The laissez-faire ideal had been thoroughly discredited by democratic politics, and the Roosevelt Court reinterpreted the Constitution to express this fundamental change in public opinion. By the early 1940s, it had unanimously repudiated restrictive precedents and transformed the Commerce Clause into a source of plenary Congressional power. Over the longer haul, it weakened, but did not eliminate, constitutional protections for private property and freedom of contract. Neo-cons seek to restore the ‘Constitution in Exile’ as it existed before the Roosevelt Revolution. We owe this phrase to Douglas Ginsburg, the federal judge whose nomination was withdrawn in the wake of Bork’s defeat. Writing in 1995, Ginsburg confessed that he did not expect to see the exile return during his lifetime, but he proposed its restoration as a long-term goal.
The Rehnquist Court has already laid some of the groundwork. After more than a half-century in which Congress was free to interpret the Commerce Clause to authorise legislation against any problem of national concern, the Supreme Court began in 1995 to place limits on its regulatory powers. Returning to ‘first principles’, a five to four majority in the Lopez case struck down Congress’s Safe Schools Act, which made it a crime to carry a gun within a school zone. As the dissenters pointed out, Lopez was an easy case under New Deal principles. The nation’s economic future obviously depends on its schools, so why can’t Congress forbid their disruption by gun-toting hoodlums? While schools may be local, their graduates move throughout the nation, and use their skills in interstate commerce. So where is the problem under the Commerce Clause? Chief Justice Rehnquist responded with the wordplay that led the Old Court to strike down progressive legislation. He treated ‘education’ as if it existed in an entirely different sphere from the ‘economic’ activities governed directly by the Commerce Clause. He then denied that unsafe schools even had a ‘substantial effect’ on commerce, ignoring the compelling demonstration supplied by the dissenters. Justice Thomas’s separate concurrence went further, condemning the New Deal Court’s switch as a ‘wrong turn’.
The Lopez case was only the beginning. The same five-judge majority has been nibbling around the edges of national power, escalating its attack with the Morrison decision of 2000. For the first time in modern history, Morrison struck down a civil rights statute, the Violence against Women Act, as beyond the powers of Congress. To reach this result, the court was obliged to narrow the meaning of another great clause of the Constitution. After the Civil War, the 14th Amendment committed the nation to the ‘equal protection of the laws’, and explicitly granted Congress the power to ‘enforce’ this promise of equality. Violence against women perpetuates their subordination, yet the same five to four majority denied that the 14th Amendment authorised Congress to take steps against this abuse. In striking down the statute, the majority ignored historical evidence that the framers of the 14th Amendment expected Congress, not the court, to take the lead in fighting inequality. Though neo-cons profess faith in the original understanding of the Constitution, their faith mysteriously runs out when it comes to civil rights.
It is premature to view these recent judgments as heralding the decisive return of the Constitution in Exile. Justice Thomas regularly writes separate concurring opinions elaborating on the most reactionary implications of the court’s most provocative paragraphs. But he speaks only for himself. The two old-fashioned conservatives in the five-judge majority – Kennedy and O’Connor – sometimes explicitly restrict their decisions to the narrow facts of particular cases. And sometimes they simply disagree with the neo-cons, joining more moderate justices in majority opinions that swerve back to more expansive interpretations of the Commerce and Equal Protection Clauses. Only the appointment of more neo-cons will resolve the present uncertainty, and make possible a full-scale ideological assault on the regulatory competences of the federal government.
An obvious victim would be the health and safety of workers. As Thomas might put it, before its ‘wrong turn’ in the 1930s, the court found federal child-labour laws beyond the power of Congress, and these old precedents could readily provoke a neo-con majority to reassess a great deal of modern protective legislation. The new court would probably be prudent enough not to attack these laws immediately. It would begin slowly by construing health and safety statutes narrowly in the light of its newly discovered constitutional doubts about their conformity with the Commerce Clause; a few years later, these doubts would ripen into a strong conviction that the Congresses of the late 20th century had entered forbidden ground reserved to the states.
Environmental law provides an even more tempting target. In protecting fragile ecosystems, the Endangered Species Act serves long-term economic interests in helping to prevent environmental catastrophe. But such long-term appeals no longer satisfy the court, as the Lopez decision showed in its rejection of Congress’s power to keep guns out of public schools. It would be child’s play for a neo-con majority to strike down the Endangered Species Act as beyond the Commerce Clause.
What’s more, the same five to four majority has been expanding the constitutional provision that guarantees ‘just compensation’ when property is ‘taken’ from its owners by the government. Neo-cons don’t limit this requirement to cases in which property is literally ‘taken’ away. Despite their professions of ‘strict construction’, they increasingly insist on compensation when environmental regulations restrict property-owners’ freedom to build on their land. If this trend continues, governments will be obliged to pay crippling amounts of money if they hope to protect the environment against free market exploitation.
Constitutional experts are well aware of these trends, but the word hasn’t reached the general public. While labour and environmental activists don’t look on the current Supreme Court as a friend, they don’t appreciate how much of an enemy it threatens to become. If Bush moves forward with Bork II, there will be far more at stake than the future of Roe v. Wade.
The key to the Constitution in Exile decisions are Kennedy and O’Connor, who have voted with the neo-cons to create a narrow five to four majority. In other important areas, one or both have joined the rest of the court to stop the anti-regulation agenda in its tracks. The court has recently and most notably reaffirmed the use of well-crafted affirmative action programmes by a vote of five to four, and upheld new statutory restrictions on large political contributions by the same margin. These results will change with a further shift to the right: there will be no affirmative action, and there will be a dramatic cut-back on permissible controls over campaign slush-funds.
During the 20th century, the federal government has become a general problem-solver, capable of responding flexibly to new issues as they come onto the horizon. The anti-regulation agenda is so broad that it threatens to destroy this familiar understanding of national government, forcing Congress to accept the invisible hand of the free market.
Both the religious and the anti-regulation agendas have long histories and intricate – if competing – judicial philosophies. The war on terrorism is a different matter, raising big questions that run across the grain of old philosophies. It’s no surprise, then, that the Supreme Court responded uncertainly when confronting its first three terrorism cases last term. It has been justly praised for rejecting the president’s effort to insulate Guantanamo from all judicial review. But it didn’t go further and explain which concrete safeguards would be required, leaving this to future litigation. And by a five to four vote, it refused to say anything at all about an even more important case involving Jose Padilla.
Padilla is an American citizen who has never fought on a traditional battlefield. He converted to Islam when in prison and later travelled to Pakistan. On returning to O’Hare Airport in Chicago, he was seized as a terrorist. Rather than proving the government’s case in court, the president declared him an unlawful combatant in the war against terrorism, stripped him of all his rights, and detained him indefinitely in a military prison. Padilla’s lawyer sought to gain his freedom by means of a writ of habeas corpus, but the president denied that federal courts could review his decisions as commander in chief.
The stakes are enormous: if the president can throw Padilla into jail on his say-so, no citizen is safe. After spending more than two years in confinement, Padilla finally got his case to the Supreme Court. But a majority seized on a jurisdictional pretext that will require him to wait another year or two while his case takes another detour in the lower courts. It’s a dark day when a citizen must wait in prison for three or four years before the court will even consider whether the government must prove its case against him in a court of law.
The court did come to a final judgment in another terrorism case. Yasir Hamdi is also an American citizen but was picked up on the battlefield in Afghanistan – a far more suspicious place to be than O’Hare Airport. His lawyers said that he was an inexperienced aid worker caught in the wrong place at the wrong time, but the government claimed that he was ‘affiliated with a Taliban unit’. Once again, the president denied that any court could review his findings as commander in chief. Only one justice agreed: Clarence Thomas. The rest of the court insisted that due process required concrete safeguards against arbitrary presidential detention. Yet they spoke with a multiplicity of voices, and settled on a dangerously low standard of review. Most important, Hamdi won’t be able to require the government to persuade a jury that he is guilty beyond a reasonable doubt. Instead, the court gave the government the benefit of the doubt, and will require Hamdi to prove his innocence before a military, not a civilian tribunal.
Hamdi v. Rumsfeld is limited to the treatment of Americans who are caught up in a traditional war. Nobody can say whether it will be extended to Padilla’s case when it returns to the Supreme Court. There is an obvious difference between seizing an American citizen on the battlefield, and seizing him at O’Hare Airport. But will a majority have the courage to draw the line, or will it allow the president to strip any citizen of his presumption of innocence by declaring him a foot-soldier in the war on terrorism? I fear the answer, especially if Padilla’s case returns to the court in the aftermath of another terrorist attack.
Bush’s favourite stealth candidate may well be an administration lawyer who has, in one way or another, helped construct the president’s extreme arguments for expanded powers as commander in chief. Consider the successful nomination of Jay Bybee to the Court of Appeals for the Ninth Circuit. Bybee was the assistant attorney general responsible for the preparation of the notorious torture memos which denied, for example, that Congress could constitutionally forbid the president from ordering the torture of enemy combatants. When they were leaked, the furor forced the administration to repudiate some of its most extreme positions. But the news came too late: Bybee had already been confirmed by the Senate. At the crucial moment, when questioned, he stonewalled: ‘As a member of the administration, it is my responsibility to support the president’s decision. To the extent that I might have a different personal view on this matter (or any other matter of administration policy), it would be inappropriate for me to express publicly a personal view at variance with the president’s position.’
If a nominee for the Supreme Court says something similar, the Democrats should invoke their power, under Senate rules, to continue the floor debate indefinitely until the nominee responds fully and frankly. Rather than promoting a Bush loyalist in the war on terrorism, the Senate should insist that the president bring forward one of the countless conservatives who have publicly defended the great American tradition of due process of law.
Suppose that Democrats allow the Senate to confirm two or three stealth nominees who secretly endorse all the positions presently advanced by Thomas in his separate opinions. Reinforced with the youthful energy of these true believers, the Bush Court will embark on a great revolution in constitutional law, and it is easy to imagine the likely future.
The court grants the president the power to strip citizens of their presumption of innocence, but doesn’t look on the powers of Congress with equal indulgence. The commander in chief makes war on his own citizens, but Congress is prevented from passing the Endangered Species Act. Sceptical of progressive health and safety regulation, the court requires that each initiative be tested rigorously to determine whether it has a ‘substantial effect’ on interstate commerce, and it is the court, and not Congress, that makes the crucial fact-finding decisions.
Americans are stripped of their constitutional rights to privacy, and women die in back-alley abortions. The state may snoop for tell-tale signs of forbidden intimacies or terrorist sentiments, but must protect property rights against intrusive zoning. If environmental concerns prompt a state or local government to take serious action, it must pay top dollar for the privilege. The court is careful to guarantee formal equality to blacks and other minorities, but if Congress wishes to act against the social forces keeping them down, the court will keep it on a very short leash: if protecting women against violence is beyond the power of Congress, its remedial powers are limited indeed. And yet the court’s fealty to limited government has its limits. It frees the states enthusiastically to support religion and authorises Congress to support these crusades with multi-billion dollar appropriations. The Establishment Clause merely restrains Congress from preferring Christians over Muslims in the struggle against secular humanism. While the court shrinks the scope of the Establishment Clause, it expands another provision of the First Amendment. ‘Freedom of speech’, it will tell us, guarantees rich people the right to give virtually unlimited political contributions.
All this will become clear at the Senate hearings, so long as the president is denied the stealth option, and comes forward with Bork II. At best, Republican apologists will seek to minimise the breadth of the neo-con revolution by making a short-term strategic point. Rehnquist is likely to provide the first vacancy, and his replacement by Bork II won’t change many five to four decisions in the short run. This point may encourage Democratic fence-sitters to confirm Bork II and delay a Senate filibuster until Bush tries to replace a more moderate justice with another neo-con.
This would be a fatal mistake. As soon as Bork II ascends to the Supreme Court, neo-cons will be crowing about their famous victory. Just as Reagan’s success in appointing Scalia encouraged the nomination of the more extreme Bork, the ascent of Bork II will encourage the nomination of a more extreme Bork III. In any event, it is wrong to succumb to a short-term perspective. The fate of the court depends on the success of progressives in convincing the country that the neo-con Constitution is wrong in principle. Once Senate Democrats concede that Bork II’s vision is acceptable, it will be very difficult for them to regain the initiative in future debates. The time for principled opposition is now.