They try to deny it, but Supreme Court justices have an enormous amount of power. They are not just deciding cases and making narrow rulings about constitutional interpretation. They are essentially making policy on issues that affect everyone, whether you know it or not. Constitutional provisions and federal laws are often vague enough that to be interpreted in various ways. It makes a big difference who the President nominates to the Supreme Court.
The U.S. Senate is focusing this week on Sonia Sotomayor, President Obama's choice for the Supreme Court. I'm going to tell you right now. Thank God Obama was elected. Had John McCain won the White House, another conservative would be appointed to the Court, further solidifying what is currently a 5-4 majority on the Court. Another Republican Justice would make it a 6-3 conservative majority.
That one vote can make all the difference. A 5-4 majority is one thing. The fifth conservative, Anthony Kennedy, sometimes grabs hold of himself and votes with the liberals, not so much because Kennedy is a closet liberal, but because he is not an ideologue, and the other conservatives probably scare him from time to time. Were retiring Justice David Souter replaced by a right-winger, Kennedy would lose his status as a swing vote and the fifth rock solid conservative and ... well, it would be all over as far as I'm concerned.
The conservative movement in this country wants to move the Supreme Court further to the right. Having a merely conservative Court is not enough. They want a Supreme Court that makes abortion illegal, grants unfettered gun rights and gives corporations unlimited First Amendment authority to donate zillions of dollars to political campaigns. Those are the hot-button issues before the Court, but the other issues that affect all of us don't get all the attention. Let me tell you how bad it can get on the Court.
The most conservative Supreme Court Justice is Clarence Thomas, appointed by George H.W. Bush in 1991 after a controversial nomination process that saw his former subordinate accuse him of sexual harassment. Since he is black, people thought Thomas would find his inner liberal and sympathize with civil rights victims. It never happened. Thomas has revealed himself as a reactionary who wants to interpret the Constitution in the way that the framers would have interpreted it. As far as Clarence Thomas is concerned, it is always 1787.
This means that public school students should have no free speech rights at all. In 2007, the Supreme Court decided Morse v. Frederick, finding that a school principal could legally discipline a student who unfurled a Bong Hits For Jesus Banner during a school trip. While the Supreme Court sided with the school in that case, it recognized that students continue to have limited rights under the First Amendment. But Justice Thomas took things further. He argued that students in public schools should have no First Amendment rights at all. None. Justice Thomas would overturn a 40 year-old Supreme Court precedent establishing that even students have rights under the First Amendment. His justification for this argument was that students in the 19th Century did not have speech rights. So they should have no rights in school today. This extreme view should have gotten more attention, but it got swept away, and I'm not sure many lawyers even know about it.
A few weeks ago, Clarence Thomas did it again. This time around, the case involved an adolescent girl who was strip-searched by school authorities looking for an Advil equivalent. The Supreme Court said the search violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Who would argue to the contrary? Clarence Thomas wrote that the Fourth Amendment should not apply to public schools. Instead, we should return to in loco parentis, where schools take on the role as the student's parent and have unlimited authority to discipline the kids. There may be other ways to protect students, Justice Thomas said, but those protections cannot be found in the Constitution. Many conservatives worship Justice Thomas. They are worshiping a man who believes that public schools should be Constitution-free zones.
When George W. Bush ran for president, he said that Clarence Thomas was among his favorite Supreme Court justices. John McCain was Bush-lite. Lord knows who McCain would have picked, but it sure wouldn't have been Sonia Sotomayor. There is no way to predict for sure what kind of Supreme Court justice Sotomayor will become. At a minimum, she will not align herself with the conservatives. Having studied her opinions and argued cases before her on the Second Circuit Court of Appeals, I can say this: she has potential to be a damned good Justice, and anyone who voted for Obama and genuinely wanted to prevent another Republican presidency will be glad that she is on the Court.
