[Marxism] Taking aim at the Supreme Court

["Marvin Gandall" <marvgandall@xxxxxxxxxx>]

The consequences of last November's US election will be felt most sharply at
the level of the federal judiciary, which oversees the vast corpus of reform
legislation and regulation introduced since the Great Depression.

Today's NY Times Magazine cover article deals with the looming battle
between American liberals and conservatives over the composition of the
Supreme Court. Having secured control of Congress and the executive, the
Bush administration is now set on restoring the Court to its original role
as the ultimate bulwark against social and economic reform.

Bush is expected to soon name one and possibly two new justices in the mold
of Clarence Thomas, favouring "legal doctrines that established firm
limitations on state and federal power before the New Deal", writes the
liberal legal scholar, Jeff Rosen of Georgetown University. Rosen traces the
rise of the informal Constitution In Exile movement to which Thomas and a
growing number of younger "libertarian" judges belong, and the threat it
poses to the major social and economic reforms introduced since the 30's -
reforms which had to be judicially sanctioned by liberal constitutional
interpretations giving the federal government the power to regulate social
and economic developments.

In particular, conservative Republicans want to ensure the Court sanctions
their planned legislative rollback of minimum wage laws, workplace health
and safety measures, and trade union rights, social security and other
welfare measures, and government regulations affecting the  environment, the
media and corporate concentration and liability.

Without such sanction, as one conservative jurist told Rosen, "even a
Republican Congress.seems unlikely to roll back most post-New Deal programs
and regulations (since) much of the regulatory state is politically quite
popular." The threat of mass protest is therefore why changes to the
institution farthest removed from popular pressure is so important to the
Bush administration. It affords the possibility of gradual deregulation by
stealth without exposing the system to strain. But Rosen also notes in
conclusion that even "when judges try to short-circuit intensely contested
democratic debates, from the New Deal cases to Roe v. Wade, they may provoke
a fierce political backlash that sets back the movement they are trying to
advance. In this sense, even if the Constitution in Exile movement manages
to transform the courts before it has transformed the country, it may find
that it has won less than it hoped."

The axiom that the courts - no matter what their political colouration -
follow rather than lead public opinion may be about to meet its strongest
test.

Full: http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html





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