At first, it was hard to know how to respond to President George W. Bush’s nomination of Harriet Miers, a Texas attorney with no judicial experience, to the U.S. Supreme Court. Chief Justice John Roberts holds a more prominent position, but he replaced William Rehnquist, a reliable conservative vote. Miers would replace Justice Sandra Day O’Connor, who has often been a swing vote in 5-4 decisions.
Thus Miers could change the balance of the court in a way that Roberts does not, and that has a lot of people worried – some because she would change the balance, and others because they’re scared she won’t.
But perhaps there’s no good reason to be worried, one way or the other. For one thing, Supreme Court decisions may not be all that important anyway, and for another, how could the court get much worse?
Let’s start with importance. Perhaps the most potent decision from the Rehnquist Court was Bush vs. Gore in 2000. But every thorough count of those hanging chads gave Bush a victory, so the Supreme Court decision was irrelevant. The Supreme Court did not change the course of history; at most it hastened it.
Go back half a century to the landmark decision by the court under Chief Justice Earl Warren (who also had no judicial experience before joining the court): Brown vs. Board of Education. It outlawed school segregation by race, and overturned the 1896 decision in Plessy vs. Ferguson which had allowed racial segregation, so long as the “separate” facilities were “equal.”
The decision changed the law, but not the hearts and minds of many Americans. That explains why Jonathan Kozol just issued yet another book which argues that American public schools are at least as racially segregated now as they were in 1954. So what did Brown really change?
Another big Warren Court decision was Miranda vs. Arizona in 1966. We know the drill from countless shows on TV: “You have the right to remain silent … .” Authoritarians might have bridled at the idea that the police had an obligation to inform suspects of their rights as American citizens, but criminals are still arrested and convicted. Indeed, we have more than 2 million people in prison in this country. Despite Miranda, and that bleeding-heart exclusionary rule that forbids the use of improperly obtained evidence, we lead the world in prison population.
Thus, if we look at the practical effect of major Supreme Court decisions, they don’t seem nearly as momentous as they might have appeared at first.
As for the Rehnquist Court, can a Roberts Court be much worse? Under Rehnquist, it might well have been called the “Money Court,” because that’s the side that almost always came out on top.
Consider two decisions from Rehnquist’s last term. In Kelo vs. Connecticut, the eminent-domain case, the big money was on the side of the city so it could condemn property for a private development. You never hear of a municipal government condemning a four-star hotel so it can redevelop the site and sell it to ma-and- pa grocers, florists, booksellers, etc. It’s always the other way around.
And guess which side the court was on? In the medical marijuana case last spring, the big money was on the side of the pharmaceutical industry, which does not want us using home-grown medications in lieu of buying its patented products. Again, we know which side the court took.
Go back to a Colorado case. We once made it illegal to pay people to gather signatures on petitions. It seemed a reasonable extension of the law that makes it illegal to buy votes on Election Day.
But the Rehnquist Court found that this prohibition was a violation of the civil rights of millionaires. In the court’s view, people with a lot of money to burn should be able to put anything they want onto a Colorado ballot.
Sure, I’d like to know what assurance James Dobson got that made him tell his right-thinking followers at Focus on the Family that they could trust Harriet Miers to do right by them.
But it may not matter. Miers probably can’t do much damage to a court, and a judicial system, where the “Rule of Law” increasingly means the “Rule of Money.”
Ed Quillen of Salida (ed@cozine.com) is a former newspaper editor whose column appears Tuesday and Sunday.
