One of the favorite get-out-the-vote techniques among conservatives is the question of the appointment of judges. The reasoning has been that conservative judges are less likely to "legislate from the bench."
My understanding of this phrase is that courts, at any level, will not write laws, but merely rule on whether or not certain laws are constitutional. This is why California's high court began allowing marriage between gay couples (18 months ago now?) despite a referendum against them passed by the people the previous year. The court ruled that the law was inherently discriminatory and that, as such, was in violation of the California State Constitution. Voters responded with a stronger referendum amending the constitution itself. The Court then had to reverse its decision and now marriages between gay couples cannot be performed in California either by law, or by mandate. Of course, it is only a matter of time before a case goes through enough appeals courts to ask the Supreme Court whether or not laws regarding marriage between people of the same sex are in violation of the federal Constitution.
Can you see the difficulty? My own reading of the Constitution makes it clear to me that the states are allowed the ability to regulate laws regarding marriage, because it is not a power specifically given to the feds. However, the Constitution also states in Article IV that, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Marriage, being a public act with a public record should therefore be valid from state to state, like a driver's license, right? But what about the law in Utah, dating from the mid-nineties (I was on the floor when it passed) that no marriage would be recognized in that state unless it was between two people of opposite sexes? Similar laws exist in many other states.
The controversy and lawsuits on both sides make it a given that a case regarding the legality of marriage between homosexuals will make it to the Supreme Court in the next few years. There is little precedent here. State sodomy laws were struck down by the High Court nearly a decade ago based on the "right to privacy" that formed the basis of the Roe v. Wade abortion decision. But marriage is different--marriage is inherently public. People get married in order to publicly declare their commitment to one another; to give legitimacy to their relationship and to their children.
I've gotten sidetracked. This post wasn't meant to be about the issue of "gay marriage." I treated that at some length last summer. I merely use the complexity of the issue to illustrate a point about the Court.
It is this: People of conservative values have worked very hard in the last generation to ensure the election of public officials who will appoint conservative judges with the end goal of helping to preserve laws that maintain some level of public morality. On its surface this seems like a very worthwhile thing. However, it has been mentioned here on more than one occasion, that government will often create a set of laws hoping for a certain outcome, but there are other, unintended, consequences that come along as well.
Conservative judges don't just rule on "values" types issues--abortion, marriage, rights of churches, etc. They also tend to rule favorably on other things--torture, political breaks for big business, broad gun laws, etc. . . . things that a person vehemently opposed to abortion might also dislike. The courts have become as politically extreme as the politicians--when most Americans count themselves as somewhere in the middle.
No where is this more telling than in the Supreme Court decision that came down late last year regarding campaign finance reform. Here is a description:
"Most notoriously, Congress passed the McCain-Feingold campaign-finance bill, which President Bush signed into law; earlier this year, in a decision by Anthony M. Kennedy, the Court eviscerated that legislation and decreed that corporations have the right to spend unlimited funds to elect the candidates of their choice. In that case, known as Citizens United, the majority also reversed two recent Court decisions."
Stevens, the Justice who will soon retire, wrote a scathing descent in the case. His anger was based primarily on how broad the ruling was. He felt that the majority could have easily ruled in favor of the particular corporation in question, without applying broad Bill of Rights-type protection to a company and overturning precedent. The court, if it had truly been outside the political system should have ruled on the case without overturning the bi-partisan legislation that took years to pass.
The above referenced article continued, "[Chief Justice] Roberts and his allies, like the conservatives of seventy years ago, profess to believe in judicial restraint (the opposite of activism) and respect for precedent, but their actions belie their supposed values."
The "seventy years ago" refers to the conservative court that was seated when Franklin D Roosevelt came to office. Limited government proponents from California to Maine declared war on the New Deal by filing law suit after law suit, hoping that at least ONE would find its way to a friendly court who would then gut the New Deal and banking reform. Longevity won out: FDR ultimately appointed eight judges during his 3 1/4 terms, effectively ensuring that his particular vision of government would last a very long time.
Whether or not this is a good thing depends entirely on whether you see FDR as one of the finest presidents we ever had or if he started our country on a collision course with socialism. History repeats itself: President Obama was elected in a time of financial crisis, to a country already at war on two fronts (instead of later, as in FDR's time), high unemployment, in a razor thin election and with courts unfriendly to his agenda. Unlike that time, he is also faced with real-time reactions to his speeches, pundits with more sway than reporters, and comments "published" with every single news article on the web.
Like the conservatives at the time of the New Deal, our modern Republicans have also sworn to repeal Health Care (and whatever else might come out of this administration). The irony is that the more moderate Republican party of Bush Senior and the early Clinton years proposed a health care bill in essence very much like the one that just passed--back then it was the Democrats who screwed up. They were pushing so hard for a nationalized system they didn't see what was being offered as a good compromise. Now the most conservative Republicans are pushing so hard for what? A complete dismantling of government? that they can't see that what they are being offered IS a compromise.
What lessons will we take from history? Will the current Supreme Court foil the most progressive political agenda in a generation? And who ultimately will benefit/suffer if it does?