2/10/03

Roy Summerford, 334/844-9999.

COMMENTARY: JUDICIAL CONSERVATISM IS CODE FOR JUDICIAL EXTREMISM

The future of the U.S. judiciary -- as it is intended to be sculpted by President George W. Bush and the new Republican-led Senate through at least 2004 -- would be anything but conservative. In fact, the presently gestating Bush II Court, as well as the rest of the federal judiciary, may soon be dominated by plutocratic, autocratic and theocratic extremists, not conservatives.

Truly conservative judges try hard to adhere to well-established judicial precedent unless the economic and political situation of the nation has so drastically changed that great social turmoil is likely without prompt judicial retooling of the law. This is what occurred from the 1930s-70s when the New Deal and Second World War compelled the Court to mesh prevailing criminal, business, labor, and civil rights laws and regulations with unprecedented social, economic and political turmoil. The world had transformed and the federal courts had to revamp the laws of the land accordingly or lose their legitimacy in the eyes and hearts of an aroused American public.

The Reagan Revolution (which was neither a response to a global depression nor a world war) and the judicial appointees under RR, Bush I and Bush II have nevertheless been dedicated to reversing all this New Deal and Post-World War II precedent and bringing America back to the 1920s when corporations, sexists, racists and religious bigots roamed freely. Such a judicial strategy is hardly conservativism and one of judicial restraint. It would be, in truth, a radical, extreme reactionary ideology being applied by a new majority of federal judges. The word conservative is simply verbal camouflage.

Actually, much the same sort of judicial activism (some extreme and some not) has been applied throughout much of the Supreme Court's history because just about all the Supreme Court's docket is filled with cases that have ill-defined precedent in the first place. This ambiguity allows for a maximum amount of judicial discretion in deciding cases at the Supreme Court level and thus allows the value system or ideology of the justices to construct the law. If they have an extreme point of view, then their rulings will reflect that.

An excellent example of past judicial extremism is how the Supreme Court (which throughout almost its entire history was comprised of justices born to the manor and/or who represented the wealthy directly or through their corporate entities) has empowered corporations and attacked the Bill of Rights in ways the framers of our Constitution and our civil liberties amendments never imagined. It is laughable to define court decisions that gave corporations the same political rights as individual citizens or shielded them against state and national regulations as conservative. Doesn't the Preamble say that the Constitution and American government was designed to promote the general welfare? Wasn't one of the key reasons for the American Revolution a fight against arbitrary governmental actions against individual citizens? Weren't state regulations against child labor, unhealthy food processing, predatory lending practices, etc., designed to promote the general welfare? What exactly are these pro-corporate and anti-civil libertarian extremists conserving -- other than aristocratic, authoritarian, anti-social and theocratic values all of which are antithetical to what our Constitution is all about?

So, looking at a future U.S. judiciary packed with a clear majority of reactionary extremists by Bush IIs legal wizards , what might be some realistic outcomes of further direct and overt, or indirect and covert, reversals of many of the most progressive decisions by the Roosevelt and Warren Courts? There would be a reasonable chance that in the next decade or so: (1) states would regain the power to make abortions a felony against women and their physicians and some will do so; (2) the wall between church and state would be severely breached and an American neo-theocracy established; (3) a quasi-police state would become less and less accountable to the courts allowing for ever-widening and deepening personal and political electronic surveillance and persecution; (4) corporations and newly emerging oligopolies would have much more liberty to exploit consumers, their employees, and the environment; and (5) the public school system would continue to deteriorate rapidly, which would, in turn, swell the divide between rich and poor.

This would be conservative? This would be restraint?

That's the bad news. The good news is that this brand of American judicial extremism, which has had several hey-days, has also unfailingly led to wholesale public outrage -- a widely shared public disgust that has helped catalyze the key American democratic social movements throughout our history. There is no reason to believe this pro-democratic spirit of the American people would not erupt sometime in the future to depose the kind of judicial imperialism that the Reagan-Bush I and II dynasty hopes to impose on us for the first two or three decades of the 21st century.

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(Theodore L. Becker, the Alumni Professor of Political Science at Auburn University, has been studying, teaching and writing about judicial politics for more than 40 years. The author of 12 books (including The Impact of Supreme Court Decisions, Political Trials, and Comparative Judicial Politics), he served on the legal staff of the attorney general of New Jersey, was the Walter Meyer Professor of Law at NYU Law School and helped found The Richardson School of Law at the University of Hawaii.)

feb03:AU-becker