President George Bush may be on the verge of making the boomerang decision of his political career. Should he nominate a replacement for retiring Associate Supreme Court Justice, William J. Brennan, Jr. who is a right-wing ideologue or even a person similar in philosophy to Justices Kennedy and Scalia -the two most recent nominations by Ronald Reagan, the resultant grassroots backlash may consign the Republican Party to another generation of second fiddle.
Another Reagan-type Supreme Court Justice will decisively tip the Court Into the conservative Justices control, A pattern of decisions will become predictable that will roil large or influential voting groups in American society. The middle-of-the-road but leaning rightward court of the Eighties will be history
Regardless of where you stand on these issues, consider the intensity of reaction to Supreme Court decisions for the next twenty years that come down hard against worker organizing and safety rights, against civil liberties, against the right of taxpayers and other aggrieved citizens to suing the government, against the right of military personnel suing the Pentagon and military contractors whose defective equipment caused serious harm, against consumer and environmental rights both vis-a-vis corporate wrongdoing and government nonenforcement of laws in these areas, against a woman’s legal right to abortion, against affirmative action on behalf of minorities, for political patronage as a basis for hiring or firing government employees, for government secrecy and against government whistleblowers, for more aid to parochial schools and less protection for the press from libel suits. These are the likely trends of this now overwhelmingly Republican Supreme Court — a pattern that will not be ignored by the Democratic Party.
The Supreme Court in American history has often played the role of either pressure cooker or steam valve. Under President Franklin Roosevelt, the conservative Court blocked many of his New Deal proposals and consequently the action shifted even more decisively to the legislative arena. in the Forties and Fifties, the civil rights movement found little receptiveness to its causes by Congress or state legislatures. So their action shifted to the Supreme Court which came down again and again on the side of civil rights in a series of major decisions spanning nearly twenty years of Chief Justice Earl Warren’s tenure. Some historians have observed that without this Supreme Court steam valve, the struggle would have been much more in the streets and violent.
Historians have also commented that prejudging nominations to the Supreme Court could he severely mistaken, Hugo Black, once a segregationist in his early years, on ascension to the Court became a civil rights and civil liberties Justice. Both Earl Warren and William Brennan were Republicans appointed by a Republican President, Dwight Eisenhower, And President Kennedy’s sole nominee, Byron White, turned out to be quite conservative.
Nonetheless, the current crew of Reaganites have become much more proficient in finding their mirror images. Scalia and Kennedy have not disappointed the hard right wing politicos who backed their nominations. The background checks of their writings and statements, and the intensive questioning of the possible nominees and their friends have become a fine art. No more surprises, say the Republicans, given what happened with Warren and Brennan.
With the road to the Supreme Court a more hopeless one, mass mobilization in the electoral arena — consider the last few months mobilization of the pro-choice groups following what they saw to be a restrictive Supreme decision last year — and on legislatures will be forthcoming. The Republican Party will not benefit from such mass activism. Even the unions may become aroused by their rank & file.
A Supreme Court viewed by many people on many highly charged issues to be a foregone conclusion instead of an avenue for appeal will be bad for judicial review, but very energizing for the rest of our democratic options. Watch for a very hot decade
As Fred Barash, writing about the Brennan’s resignation in the Washington Post, exclaimed: “This one is not just another Supreme Court retirement.” From now on for some years, this will be a pro-corporation Court and a Court that defers to the power of the state against many formerly protected rights of the people.