Robert's Supreme Court is a conservative's dream

[janneke]

Analysis: Robert's Supreme Court is a conservative's dream
By Linda Greenhouse
Sunday, July 1, 2007

WASHINGTON: It was the Supreme Court that conservatives had long
yearned for and that liberals feared.

By the time the Roberts court ended its first full term on Thursday,
the picture was clear. This was a more conservative court, sometimes
muscularly so, sometimes more tentatively, its majority sometimes
differing on methodology but agreeing on the outcome in cases big and
small.

As a result, the court upheld a federal anti-abortion law, cut back
on the free-speech rights of public school students, strictly
enforced procedural requirements for bringing and appealing cases,
and limited school districts' ability to use racially conscious
measures to achieve or preserve integration.

With the exception of four death penalty cases from Texas, where the
state and federal courts remain to the right of the Supreme Court and
produce decisions that the justices regularly overturn, the
prosecution prevailed in nearly every criminal case, 14 of the 18 non-
Texas cases.

Fully a third of the court's decisions, more than in any recent term,
were decided by 5-to-4 margins. Most of those, 19 of 24, were decided
along ideological lines, demonstrating the court's polarization
whether on constitutional fundamentals or obscure questions of
appellate procedure. The court's last-minute decision, announced on
Friday, to hear appeals from Guantánamo detainees required votes from
at least five of the nine justices.

Of the ideological cases decided this term, the conservative
majority, led by Chief Justice John G. Roberts Jr. and joined by
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.,
prevailed in 13. The court's increasingly marginalized liberals —
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and
Stephen G. Breyer — prevailed in only six, including the four Texas
death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted.
Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In
the 68 cases the court decided by signed opinions, Justice Kennedy
dissented only twice.

The statistics underscore what case after case demonstrated as the
term unfolded: Justice Kennedy's role in the position that Justice
Sandra Day O'Connor once held at the court's center of gravity.
"Kennedy is very much the median justice now, as Justice O'Connor
was, and he is to her right," said Steven G. Calabresi, a professor
at Northwestern University School of Law.

Professor Calabresi, a former law clerk to Justice Scalia and a
founder of the Federalist Society, added: "Clearly the court has
moved in a direction that leaves most conservatives pleased."

Justice O'Connor's actual replacement, Justice Alito, who took his
seat in January 2006 and who thus has just completed his first full
term, is indisputably to Justice O'Connor's right. His vote in place
of hers made the difference in several important cases, including the
decision to uphold the federal Partial-Birth Abortion Ban Act and to
treat campaign advertising by corporations and unions as core
political speech despite the restrictions imposed by the McCain-
Feingold campaign finance law. Justice O'Connor would most likely
have voted to uphold the Seattle and Louisville, Kentucky, school
integration plans that the court, with Justice Alito in the majority,
voted on Thursday to invalidate; she was the author of the court's
opinion in 2003 to uphold the affirmative action admissions plan at
the University of Michigan law school.

It was that decision that prompted Justice Breyer's highly unusual
declaration from the bench on Thursday: "It is not often in the law
that so few have so quickly changed so much."

Conservative commentators, in discussing the court term, appeared to
take pains not to gloat, tending to emphasize that a number of the
decisions moved the law by increments rather than leaps or came in
cases that were "pre-ordained to showcase the court's conservative
leanings," as Professor Richard W. Garnett of Notre Dame Law School
put it. "The marquee cases this term happened to reflect the culture
war issues where Kennedy's leanings are to the right," he said.

But liberals were in an unrestrained "we told you so" mode.

"This court has shown the same respect for precedent that a wrecking
ball shows for a plate-glass window," said Ralph G. Neas, president
of People for the American Way, which helped lead the effort to
defeat the nominations of both Chief Justice Roberts and Justice
Alito. Emily Bazelon, a liberal commentator on legal subjects for the
online journal Slate, posted a column on Friday entitled, "Sorry Now?"

The question of how the court is treating its precedents is one that
recurred throughout the term in various justices' opinions. The court
explicitly overturned only three precedents, two obscure cases from
the 1960s that permitted excuses for missing court filing deadlines
and a foundational antitrust decision from 1911 that prohibited
manufacturers from imposing minimum retail prices.

Other precedents were left standing, at least for the time being, by
decisions that avoided direct overrulings while providing a roadmap
for future challenges. In several cases, a frustrated Justice Scalia
prodded Chief Justice Roberts to move further and faster to overturn
precedents that both men clearly dislike.

Their differences in style, while apparent, did not extend to
difference in substance; in nonunanimous cases, the two were in
agreement 89 percent of the time, according to statistics compiled by
ScotusBlog.

One theme was the court's sustained interest, across many areas of
legal doctrine, in limiting the ability of plaintiffs to bring or
appeal lawsuits. The trend was so pronounced that Professor Judith
Resnik of Yale Law School proposed as a label for the term: "the year
they closed the courts."

Not all the access-limiting decisions were closely divided. In two
important securities cases, the court placed new limits on
shareholder lawsuits by votes of 8 to 1 and 7 to 1. Many cases on the
court's fast-growing business docket were decided by comfortable
margins. "The entire Supreme Court has a mistrust of lawyer-driven
litigation," Roy T. Englert Jr., who has argued many business cases
at the court, told a forum at the Washington Legal Foundation this
week.

The court's overall approach to business cases left many in the
business community gleeful. "It's our best Supreme Court term ever,"
said Robin S. Conrad, executive vice president of the National
Chamber Litigation Center, which handles Supreme Court cases for the
United States Chamber of Commerce.

The 68 cases the court decided during the term that began last Oct. 2
and ended June 28 were the fewest since the 65 cases the court
decided in 1953. That was in an era when the court received barely
one-quarter of the 8,000 petitions it now gets every year. The court
was deciding more than 100 cases a term as recently as the early
1990s. The justices are self-conscious about the low number and the
resulting gaps in their argument schedule. But they seem unable to
find a sustained flow of cases that four justices, the required
number, are willing to vote to hear.

But the court's move on Friday to add the Guantánamo case to its
calendar came as a surprise. In its term that begins on Oct. 1, the
court will hear challenges by two groups of Guantánamo detainees to
the legislation barring their access to federal court. A Supreme
Court that divided 5 to 4 this month on whether a prisoner should get
three extra days to file an ordinary notice of appeal will have its
work cut out as it confronts a clash of historic dimension between
presidential power and individual rights.

Here are summaries of the term's major decisions.

Equal Protection

By a vote of 5 to 4, the court invalidated voluntary integration
plans in the school districts of Seattle and metropolitan Louisville,
Kentucky, ruling that using a student's race to govern the
availability of a place at a desired school, even for the purpose of
preventing resegregation, violated the 14th Amendment's guarantee of
equal protection.

Chief Justice Roberts wrote the opinion in Parents Involved in
Community Schools v. Seattle School District No. 1, No. 05-908. But
Justice Kennedy, a member of the majority, refused to sign the more
far-reaching parts of the chief justice's opinion that would have
barred even more general considerations of race. His position in the
middle of the court gave small comfort to the four dissenters,
Justices Stevens, Breyer, Souter and Ginsburg.

Business

A pair of decisions made it more difficult for investors to sue
companies, executives and underwriters when they suspect securities
fraud or unlawful manipulation. In Tellabs Inc. v. Makor Issues &
Rights Ltd., No. 06-484, the court ruled 8 to 1 that shareholders
must show "cogent and compelling evidence" of intent to defraud in
order to withstand dismissal of their lawsuit. Justice Ginsburg wrote
the opinion, and Justice Stevens dissented.

In the second case, the court voted 7 to 1 to dismiss a shareholders'
antitrust suit that accused 10 leading investment banks of conspiring
to fix the prices and terms for initial public offerings. The court
held that the challenged behavior fell within the regulatory domain
of the Securities and Exchange Commission, making the banks generally
immune from antitrust liability. Justice Breyer wrote the opinion in
the case, Credit Suisse Securities v. Billing, No. 05-1157, and
Justice Thomas dissented. Justice Kennedy did not participate.

In its most important patent ruling in years, the court tilted away
from patent owners and made it easier to find that a patent had been
improperly issued for an invention that was "obvious" and therefore
undeserving of patent protection. Justice Kennedy wrote the unanimous
opinion in the case, KSR International Co. v. Teleflex Inc., No.
04-1350.

In an important antitrust ruling, the court voted 5 to 4 to overturn
a 96-year-old precedent under which it was always illegal for a
manufacturer and retailer to agree on minimum resale prices. The
legality of price maintenance will now be judged case by case for its
impact on competition. Justice Kennedy wrote the opinion in Leegin
Creative Leather Products Inc. v. PSKS Inc., No. 06-480. The
dissenters were Justices Breyer, Stevens, Souter and Ginsburg.

The justices continued to curb punitive damages in a 5-to-4 decision
that overturned a $79.5 million award against Philip Morris. Justice
Breyer's majority opinion in Philip Morris USA v. Williams, No.
05-1256, held that the Oregon jury that gave the award to the widow
of a lifelong smoker might have improperly calculated the figure to
punish the cigarette maker for harm to other smokers as well.

The dissenters were Justices Scalia, Thomas, Ginsburg and Stevens.

Criminal Law

In Rita v. United States, No. 06-5754, the court held by a vote of 8
to 1 that even though the federal sentencing guidelines are no longer
mandatory, a sentence within the guidelines range can be presumed on
appeal to be "reasonable." In federal circuits that adopt such a
presumption, it will be more difficult for defendants to challenge
sentences that follow the guidelines. Justice Breyer wrote the
majority opinion, and Justice Souter dissented.

The court continued to interpret and apply the law Congress passed in
1996, the Antiterrorism and Effective Death Penalty Act, to restrict
the jurisdiction of the federal courts to rule on habeas corpus
petitions from state prison inmates. The justices ruled, 9 to 0, that
the federal appeals court in California had overstepped those limits
when it granted a new trial to a convicted murderer on the ground
that the jury had been prejudiced against him by seeing the victim's
relatives in the courtroom wearing buttons with the victim's picture
on them.

Without deciding whether the buttons had, in fact, caused prejudice,
Justice Thomas wrote for the court that under the 1996 law, a federal
court could not base a grant of habeas corpus on a legal principle
that the Supreme Court itself had not adopted. The case was Carey v.
Musladin, No. 05-785.

The court ruled, 8 to 1, that the police did not violate a speeding
driver's rights by ramming his car and causing a devastating
accident. The police officers' decision to force the driver off the
road after a high-speech chase was reasonable, Justice Scalia said in
the majority opinion. Justice Stevens dissented, noting that the 19-
year-old driver was suspected of nothing more serious than speeding.
The case was Scott v. Harris, No. 05-1631.

A unanimous ruling extended to automobile passengers the same right
that drivers have to challenge the validity of a decision by the
police to stop the car. Passengers in a car stopped by the police do
not feel free to walk away, the court held in an opinion by Justice
Souter, and thus are "seized" for purposes of the Fourth Amendment's
prohibition of unreasonable seizure. The case was Brendlin v.
California, No. 06-8120.

The court made it easier for prosecutors in death penalty cases to
remove potential jurors who express ambivalence about the death
penalty. Writing for the 5-to-4 majority, Justice Kennedy said
appeals courts must defer to a trial judge's decision on whether a
potential juror would be able to overcome qualms about capital
punishment and be open to voting to impose a death sentence. The
dissenters, in an opinion by Justice Stevens that Justices Souter,
Ginsburg and Breyer also joined, said this set the disqualification
bar too low and would skew juries toward those most likely to vote
for death. The case was Uttecht v. Brown, No. 06-413.

The court ruled 5 to 4 that a mentally ill convicted murderer who was
delusional and lacked a "rational understanding" of why the state had
sentenced him to death could not be executed. Justice Kennedy wrote
the opinion in Panetti v. Quarterman, No. 06-6407. The dissenters
were Chief Justice Roberts and Justices Scalia, Thomas and Alito.

Abortion

The court upheld the federal Partial-Birth Abortion Ban Act in a 5-
to-4 decision that was a reversal of course and a reframing of the
abortion issue. The decision in Gonzales v. Carhart, No. 05-380, was
the first time the court had upheld a prohibition on a specific
method of abortion. The law, enacted in 2003, subjects doctors to
fines and prison terms.

In 2000, with Justice O'Connor in the majority, the court had voted 5
to 4 to strike down a nearly identical state ban, from Nebraska.
Justice Kennedy's majority opinion emphasized abortion's "ethical and
moral concerns" and said the law protected women who might otherwise
have an abortion by the prohibited method from "regret," "grief" and
"sorrow."

Justices Ginsburg, Stevens, Souter and Breyer dissented.

Access to Court

A deadline for filing a federal appeal could not be excused by the
fact that a federal judge had given an inmate's lawyer the wrong
date, the court held in a 5 to 4 opinion by Justice Thomas. The
decision, Bowles v. Russell, No. 06-5306, overturned two precedents
from the 1960s that had endorsed a "unique circumstances" excuse for
missed deadlines. Justices Souter, Stevens, Ginsburg and Breyer
dissented.

The court rejected a longstanding position of the Equal Employment
Opportunity Commission, which the Bush administration had repudiated
months earlier, on the deadline for filing a pay discrimination case.
The federal statute against employment discrim The court rejected a longstanding position of the Equal Employment
Opportunity Commission, which the Bush administration had repudiated
months earlier, on the deadline for filing a pay discrimination case.
The federal statute against employment discrimination requires an
employee, as a condition of being able to proceed with a lawsuit, to
file a formal complaint within 180 days of the discriminatory act.

Under the commission's doctrine of "paycheck accrual," that 180-day
clock resets every time the employee receives a paycheck with pay
lower than it would have been in the absence of discrimination. But
the court's 5-to-4 decision in Ledbetter v. Goodyear Tire and Rubber
Company, No. 05-1074, requires the employee to have filed within 180
days of the act of discrimination, an interpretation that will keep
many such cases out of court. Justices Ginsburg, Stevens, Souter, and
Breyer dissented.

The court ruled 5 to 4 that taxpayers did not have standing to
challenge the Bush administration's expenditure of federal money to
support its Office of Faith-Based and Community Initiatives. The
dissenters in the decision, Hein v. Freedom From Religion Foundation,
No. 06-157, were Justices Souter, Stevens, Ginsburg and Breyer.

In an important disability case, the court ruled that parents of
children with disabilities could go to court without a lawyer to
challenge a public school district's plan for their child's
education. Justice Kennedy's 7-to-2 opinion said that a federal
statute, the Individuals with Disabilities Education Act, which
guarantees a "free, appropriate public education" to all children,
gives rights to parents as well. Justices Scalia and Thomas dissented
from the decision, Winkelman v. Parma City School District, No. 05-983.

Speech

The court ruled 5 to 4 that the restriction on corporate- and union-
sponsored television advertising, contained in the 2002 McCain-
Feingold campaign finance law, threatened to curb core political
speech. The provision could be constitutional, Chief Justice Roberts
said, only if interpreted narrowly to apply only to advertisements
that are "susceptible of no reasonable interpretation other than as
an appeal to vote for or against a specific candidate."

The dissenters, Justices Souter, Stevens, Ginsburg and Breyer, said
the ruling would open the door to a flood of corporate and union
money in the guise of the "sham" issue advertisements that the law
was designed to stop. They said the opinion, Federal Election
Commission v. Wisconsin Right to Life, No. 06-969, effectively
overruled a major part of the law as well as the 2003 Supreme Court
decision that had upheld it, a view with which many election law
experts agreed.

School officials can censor and punish student speech that can be
interpreted as advocating or celebrating the use of illegal drugs,
the court held in ruling that a principal did not violate a student's
First Amendment rights by suspending him for his display of a banner
proclaiming "Bong Hits 4 Jesus." Five justices, in an opinion by
Chief Justice Roberts, found no constitutional violation; a sixth,
Justice Breyer, said the principal was entitled to immunity from
damages no matter how the First Amendment question should be
answered. Justices Stevens, Souter and Ginsburg dissented on First
Amendment grounds. The case was Morse v. Frederick, No. 06-278.

Federal Authority

In its first encounter with global climate change, the court ruled by
a 5-to-4 vote that the Environmental Protection Agency had the
authority to regulate heat-trapping gases in automobile emissions.
The agency had maintained that it had no such authority and that it
would not use it if it did. But the court said the agency could
refuse to act only if it provided a scientific basis for its refusal.

To reach that conclusion, the court first had to find that
Massachusetts, which along with other states had brought the lawsuit
against the EPA, was suffering the type of injury from the agency's
antiregulatory stance that gave the state standing to sue. Writing
for the majority, Justice Stevens said states were due special
deference in their claims to standing. The case, Massachusetts v.
Environmental Protection Agency, No. 05-1120, marked a rare expansion
by the court of the doctrine of standing. Chief Justice Roberts
dissented, along with Justices Scalia, Thomas and Alito.



http://www.iht.com/articles/2007/07/01/ ... scotus.php

[janneke]

July 6, 2007

The Wrecking Ball Court
It's Scalia Time!
By DAVID MICHAEL GREEN

Thirty-three years ago, on assuming the presidency in the wake of Richard Nixon's resignation, Gerald Ford famously sought to ease the worries of a troubled nation with these words: "My fellow Americans, our long national nightmare is over".

Today, I am tempted to offer a warning, not a palliative: My fellow Americans, our long national nightmare is just beginning.

I say this because, just as the Bush administration and the regressive political movement of which it has been the most recent and most potent manifestation are recessing into a toxic pool of failure, incompetence, disaster and public abhorrence--purely of their own making--the politics they represent have now been all but firmly established on the Supreme Court for the foreseeable future. Like a nice case of herpes, this is a gift that will keep on giving for a very long time.

It is also precisely according to plan. The Supreme Court is arguably the most powerful lawmaking institution in American government--the be-all, end-all and final stop for any policy debate in which the country is engaged--and was therefore always the great prize for the cancer of regressive politics which has been metastasizing in America since Reagan, if not earlier. The presidency was always important to the right, and Congress too, especially the Senate. But the chief importance of these institutions was ultimately their capacity to serve as vehicles for remaking the third branch of government, by loading it up with young reactionaries serving lifetime terms, who would therefore sit on the bench making policy for a very, very long time. And who, by virtue of the Constitution's design, would be all but untouchable by any influence, check or balance, likely including public opinion.

That this was crucial to movement conservatives became obvious in one of the rare episodes where actions taken by King Bush manage to enrage them, and where they abandoned and reviled him across the miasma of their noxious talk radio swampland. When a second vacancy on the Supreme Court opened up, Bush's instinct was to choose someone he could count on to stand foursquare behind his single most important issue in all of American politics. So he chose Harriet Miers, a sycophant's sycophant, whose most compelling credential was unquestioning loyalty to The Man, a loyalty that even a guy with Bush's level of prescience could foresee would be very necessary in the years to come. That was his issue--not abortion, not Guantánamo, not school prayer not stem cells--just finding a reliable vote to keep George out of jail no matter what.

Conservatives went crazy at this real and apparent betrayal. This was supposed to be their big moment, the opportunity they had been scheming and striving toward for decades, and what does Bush do (after they had spent years backing him, right down the line)? He nominates a candidate for the court who was all about George, not about regressivism. Miers possessed neither the dependability of a solid conservative record to assure them she wouldn't become another Blackmun, Stevens or Souter and move to the left while on the Court, nor the intellectual heft to shape its decisions or to persuade other justices to vote for regressive policies. So the movement hammered its own president, Miers withdrew her name from consideration, and they got Sam Alito instead.

Then we all got Alito. Stupidly, and with great cowardice aforethought, Senate Democrats helped confirm both Alito and Roberts before him, both of whom had learned from Robert Bork's experience that honesty is, ahem, not always the best policy. Are you a Neanderthal who wants to be on the Court? My advice is to hide your politics well while testifying before the Senate. There'll be a lifetime of opportunity later to swing your wrecking ball as wide as you want. Meanwhile, though, refuse to take any position (even previously articulated positions) on the principle that every case is unique and you can't commit to a decision on future matters. Be sure, also, to hide behind vague judicial platitudes like your general respect for honoring precedent. If you want to really do it up right, like Clarence Thomas did, you can even pretend that you've never really thought much about abortion, probably the single most controversial issue in American politics prior to the Iraq war. Trust me, Democrats in the Senate will not block your confirmation. Many will even vote for you. Some will go so far as to publicly sing your praises. Then, once the vote is in, you can party down all you like. There's no going back.

And so it was that the regressive movement got its great and long sought after prize--a Supreme Court so backward that many of its decisions would have looked retro even in the nineteenth century. And not just the Supreme Court, either. Between Reagan and the two Bushes--not to mention classic Clintonian centrism in judicial appointments--the entire federal judiciary is now heavily stacked with right-wingers pledged to maintain their destructive march to the sea, and all of them sitting in jobs with lifetime appointments. This was the movement's great quest all along, and the decisions of the Supreme Court this year demonstrate the scope of their victory, with far more to come.

There is now a relatively solid five-member reactionary majority on the Court for most every question put before it. Where Sandra Day O'Connor was once the swing vote on the center-right of the court who would curb some of its worse excesses, that position--but not with the same politics--is now occupied by Anthony Kennedy, arguably the most influential and powerful person in American government today, at least on domestic policy questions.

The current Supreme Court is today comprised of two more or less solid blocs. On the right is the really scary Scalia camp, which also includes clones Clarence Thomas and Samuel Alito, and which also gets the vote--albeit usually dressed up in a pretty bow to appear less threatening--of Chief Justice John Roberts. There is no left on the Court, with the possible exception of John Paul Stevens, and the reference by many commentators to the 'liberal' Supreme Court faction is a misnomer. Souter, Ginsburg and Breyer are classic centrists, very much in the manner of the presidents--George H. W. Bush and Bill Clinton--who appointed them. Perhaps from the distant perspective of Scaliaville they may appear liberal, but then so also might Augusto Pinochet.

In any case, those four quite frequently vote together in an attempt to block the worse excesses of the radical right. Nowadays they usually lose, because kingmaker Kennedy--who almost single-handedly, by casting his vote with one or the other of these blocs, decides the law of the land--mostly votes with the regressives, especially on the important issues, and certainly more so than O'Connor did when she occupied the catbird seat.

What does that mean in terms of the law of the land in America? What best characterizes the Roberts Court (or should we call it the Scalia Court?, or the Kennedy Court?), more than anything else, is its worship of power. If one is looking for a single narrative theme by which to draw a thread through the Court's decisions, the best summary concept of the majority's position is that the powerful in society should be even more powerful, and the little guy should be squeezed and squashed at every opportunity.

That means that the very doors to the courts themselves should slammed in the face of many of those who formerly might have had a day in court. Looking back at the record of the last term, this theme was so pronounced that Yale Law School professor Judith Resnik dubbed it "the year they closed the courts". That means that opportunities to be heard for potential appellants rotting away in jail or facing the death penalty have diminished to the point of near extinction. Even, remarkably, in situations where they suffer due to little or no fault of their own. In one case this year, an inmate's lawyer filed a brief three days later than the standard deadline, because a federal judge had given the lawyer the wrong date. Too bad, said the hard-core right. Motion rejected without consideration. (The story is, of course, a little different if your name is Libby, though.)

It means that business, especially big business, grows ever more untouchable with every decision handed down by this court, leading Robin Conrad of the US Chamber of Commerce to remark, "It's our best Supreme Court term ever". Indeed. Somehow, though, I don't think the same will be said by investors and shareholders who are now less able to hold company management culpable for their misdeeds than they used to be, on the basis of Court decisions this term. I don't think it will be said by consumers who will pay the literal price for the court overturning a century-old antitrust precedent which has long blocked price-fixing collusion between manufacturers and retailers. And I don't think the widow of a smoker who was awarded massive damages against Philip Morris, only to have those tossed out by the Supreme Court, will be calling this the best term ever.

The bias toward power in this court means that racial minorities will no longer benefit from school integration programs seeking to promote opportunity, integration and diversity. Those days are now over, by a five to four vote. It means that abortion access was narrowed this year, also 5-4. It means--in a truly absurd and highly revealing stretch--that the Court has now made it impossible for employees to sue for salary discrimination any time beyond 180 days from the receipt of each paycheck. So if you find out years or decades later that your pay was considerably lower than that of your coworkers because, say, you're a woman--which was precisely what happened in this particular case--too bad. Thus making it almost impossible for workers to get what is owed them, and providing enormous incentives for employers to discriminate rampantly with little potential cost for doing so. Can you guess the vote on this case? Hey, you're catching on!

The list goes on and on. There is even the occasional exception, but the theme is powerful and dominant. This is your Court. This is your Court on regressivism. Any questions?

We should probably get used (which does not mean lay down) to more of the same, and very likely worse to come for the foreseeable future. Anything can happen to anyone at any time, but most of the members of the Court look like they can remain there for a long time if they choose to. The right-wingers were purposely chosen in part for their youth, and only Scalia (71) and Kennedy (70) from that crowd are at all up in years. Yet they could have another twenty years on the Court at that age, and of course, even were either of them to leave now, their replacement would be a Bush appointee. Meanwhile, those progressive readers of this article who are disposed to making appeals to supernatural deities may wish to include John Paul Stevens in their prayers. He is both by far the oldest member of the Court and its most liberal. I doubt seriously he could be pried away from his position while George W. Bush is in the White House, a supreme act of patriotism for a man who might want to retire for a few final years of rest. How old is Stevens? He was appointed by Gerald Ford, a president not so many Americans could today distinguish from Millard Fillmore. He wears bow ties, okay? He's 87. To say we're lucky to have him is the understatement of the decade.

So the best-case scenario for progressives right now is not very good at all. It involves essential stasis, with perhaps Stevens being replaced two to five years from now by a Democratic president's choice, if we're moderately lucky. And unless that president is Al Gore, chances are such a replacement will be another Clintonian centrist, less progressive than Stevens, but nevertheless part of the non-troglodyte bloc. Then, of course, there is the question of whether Republican senators, assuming there are enough left after the tsunamis of 2006 and 2008 take them out, would allow even a centrist nominee, let alone a progressive, to be considered (in the Senate, sixty votes are effectively required to do anything). But even after all that, we're still left with a largely solid regressive majority of five on the Court, continually turning the clock back to Great Grandpa's golden years, when economic and political elites were all powerful. No more of this middle-class BS anymore. No more of this equality crap. That was all so very twentieth century.

The great ironies of all this are at least two-fold. The first is that this regressive judiciary has now only fully consolidated its power at the very moment when its core ideology is being repudiated by the public, and that repudiation is showing up powerfully nowadays in the other two branches of American government. Congressional Republicans got a "thumpin'" in 2006, and now see that 2008 looks far worse. Accordingly, they are opening up Grand Canyon-like fissures between themselves and a Republican president who is in the process of transitioning from just plain unpopular to truly despised. And yet it is this very same loser ideology which will continue to determine public policy because of lifetime appointments to the federal court system, and the very intentional program of populating it with ideological clones. It's sort of like a latter-day version of the Boys From Brazil. Only even more fun, because these nice young fellows have control of the world's sole superpower.

2- Please continue

http://www.counterpunch.org/green07062007.html