There’s a very real and tangible divide between Republican politicians and their electorate. Call it the conservative gap to be polite, although I could think of some more pejorative titles for it. But whatever you call it, it’s obvious that few Republican leaders are as good at the chest-thumping bluster as their voters are. So to account for this gap, Republican leaders will often making bombastic proclamations to bolster their sagging credibility. Mitt Romney’s “I’ll double the size of Guantanamo Bay” line is a perfect example because you can practically see Romney shutting down his higher reasoning faculties to better fit in with his voters.
John McCain had his “I’ll double the size of Guantanamo Bay” moment the other day. At a town hall meeting, McCain derided the Boumediene v. Bush decision as “one of the worst decisions in the history of this country.” Speaking as someone who most decidedly will not vote for McCain, the Boumerdiene case is actually a spectacular victory for American democracy (albeit a victory by only one single vote) and I believe Justice Kennedy may forever be known for the elegant observation that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Moreover, this case clearly demonstrates what observant people have always known: the judges who most proudly claim to be strict constructionists (or originalists, same diff), Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito, were the quickest to go outside the bounds of the law and advocate and justify overturning the constitutional writ of habeas corpus on the grounds of national security. Of all the things conservatives find offensive about the court’s role in our government, how is forging a position in our national security policy not one?
As is often the case when Republicans get off script and try to impress their supporters is it comes off more as a parody of their supporters than actual politics, and in McCain’s case, it reveals his actual lack of conservative credentials. Even a hard-core Republican could put together a top ten list of bad Supreme Court decisions, where Boumediene v. Bush isn’t even mentioned.
1) Dred Scott v. Sanford – Conservative, liberal or otherwise, there is no doubt that Dred Scott represents the most egregious abuse of judicial power in American history. Chief Justice Robert Tawney authored a racially and politically charged decision finding that the Supreme Court had no standing to hear the case of a black petitioner, but since we’re all here anyway the Missouri Compromise is unconstitutional. The court’s finding was a direct contributor to the civil war.
2) Marbury v. Madison — The first decision by the Supreme Court, in which the justices granted themselves the power to declare laws unconstitutional.
3) Griswald v. Connecticut — Allowed people to buy condoms, but more importantly laid the groundwork for privacy arguments that would later be used to overturn laws against abortion and sodomy.
4) Lemon v. Kurtzman — Ruled that government must have a secular interests in mind when endorsing religion. Lemon became the standard in all cases involving school prayer, religious iconography on public property, government support of religious charities, etc.
5) Kelo v. New London — Upheld the constitutionality of eminent domain laws allowing government to seize private property without the consent of the owner.
6) Roper v. Simmons — Held the execution of children as cruel and unusual using, in part, a survey of other industrialized nations’ laws against capital punishment. Along with Kelo, Roper was one of two cases written by Justice Kennedy in the same 2005 session, which led some on the right to call for Kennedy’s impeachment.
7) Roe v. Wade — I wasn’t going to put this on here, because it seemed far too easy. Furthermore, Roe hasn’t been the guiding precedent in abortion cases since 1992’s Planned Parenthood v. Casey and the holdings of both Roe and Casey aren’t particularly unique, but rather applications of Griswald (#3), and while social conservatives don’t get as up in arms against Griswald (yet), neither Roe or Casey has been applied anywhere near as much as the Griswald precedent. In spite of all of this, Roe makes the list at number 7, because of all the dead baby fetuses.
8 ) Lawrence v. Texas — Another application of the Griswald precedent, Lawrence v. Texas held that any sex had between consenting adults in the privacy of their own home is perfectly legal. Shocking, I know, but sodomy laws had been upheld by the Supreme Court as recently as 20 years before Lawrence. A litany of other cases have been left in jeopardy by this ruling including:
– Williams v. Pryor, which upheld Alabama’s prohibition on the sale of sex toys;
– Milner v. Apfel, which asserted that “legislatures are permitted to legislate with regard to morality…rather than confined to preventing demonstrable harms;”
– Holmes v. California Army National Guard, which upheld the federal statute and regulations banning from military service those who engage in homosexual conduct;
– Owens v. State, which held that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage.”
Indeed, it is likely that in the next few years, many of these precedents will be overturned despite the strong right-ward shift of the court following the retirement of Sandra Day O’Connor, as Justice Kennedy was the author of the Lawrence majority decision. However, this is lower on the list because the court declined to overturn sodomy laws based on the 14th Amendment’s equal protection clause, which would have been a powerful, new precedent as opposed to an application of Griswald. The equal protection argument was central in both the Massachusetts and California supreme courts’ rulings that gay marriages needed to be constitutionally recognized.
9) Buckley v. Valeo — The first in a line of cases upholding campaign finance laws, and limiting personal contributions. Conservatives have criticized the court’s finding in Buckley that giving money constitutes free speech, while upholding limits on those contributions. Buckley paved the way for McConnell v. Federal Elections Commission which ruled money was not speech but property, and also upheld elements of the McCain-Feingold law banning soft money and limiting how independent groups can influence a federal election.
10) Employment Division v. Smith — A case that no one knows but should sting every conservative Christian. Justice Scalia authored this decision which basically renders the free exercise of religion clause of the First Amendment invalid, unless coupled with another right. Freedom of religion, Scalia explains, in itself is not sufficient to overturn any particular law. In doing so, he rejected the court’s previous holding in Sherbert v. Verner which the government needed to show a compelling state interest in restricting the free practice of religion. Scalia’s decision was enough to prompt Congress to pass the 1994 Religious Freedom Restoration Act, ordering the court to return to the compelling state interest standard that Scalia found untenable. Scalia also concurred when the court struck down the RFRA in 1997.
There’s a lot of bad cases, John. For the most part, this list was simply limited to the last 50 years, the time when all you right wingers think the world went to hell in a handbasket. And you’re telling me that in spite of all these cases that conservatives wine about, the restoration of habeas corpus is the worst?
Of course, Boumediene would have been a more remarkable decision had it not come in response to a centuries-long attempt to undermine the Constitution in the name of national security. In 1967, Chief Justice Earl Warren wrote:
“Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile.”
I wish we’d have listened to him then.
