The Silver Lining of Bush's Supreme Agenda

How the people could win even if the court seems like a lost cause

Despite some disturbing clues, legal and political insiders are predicting that President Bush's Supreme Court nominee, John Roberts, will be a shoo-in.

There is little out there to make him vulnerable to rejection. In his two years on the D.C. Circuit Court of Appeals, he has written but a handful of opinions, certainly not enough to reveal a judicial philosophy. Still, liberal opponents have so far detected at least three issues in his record that warrant some alarm.

The most incendiary one, of course, revolves around Roev. Wade. In September 1990, Roberts was one of several senior lawyers for the first President Bush to sign a brief stating, "We continue to believe that Roe was wrongly decided and should be overruled." That administration litigated repeatedly to expunge the choice-protecting precedent. At his 2003 confirmation hearing for the Appeals Court seat, however, Roberts said that he could, as a judge, "fully and faithfully" apply Roe, because it is "the settled law of the land."

More recently, in October 2004, Roberts upheld the D.C. arrest policy that led to the detention of a 12-year-old girl for eating a single french fry in a train station, reasoning in part that such an arrest is fine if judged by the legal custom at the time of the Fourth Amendment's framing. The little-girl-with-fry aspect seems the extreme part, but more disconcerting is the possibility that Roberts might favor the strain of judicial conservatism that believes the antiquated standards of 1791 should govern today.

And just this month, he joined an opinion stressing unusual deference to the executive branch in permitting the Bush administration to forge ahead with prosecuting the Guantánamo Bay detainees in military tribunals. Many objectors, from former military officials to civil libertarians, had warned that such shortcut proceedings violate due process and international law.

Ideally, any confirmation hearing would be a thorough grilling, on these and many other issues. An extraordinarily powerful lifetime appointment is at stake—in the case of Roberts, age 50, a reign that could last upwards of three decades. The senators should skewer the man on the known controversies and dig deep for new ones, and they should invite questions from their most incensed constituents.

But by Beltway measures, Roberts is about the most unimpeachable pick that could have emerged from the Bush White House. He began his career with the double H-bomb of bachelor's and law degrees from Harvard and all the connections and credibility that go with them. He clerked for William Rehnquist. He became a well-liked and diplomatic conservative, having worked for the Reagan and Bush I administrations and practiced in the highest echelons of American law. The oft dropped factoid is that he argued before the Supreme Court 39 times, the number being impressive because most lawyers have never even met someone who has done it once.

With that pedigree, Roberts would have to give some crazy answers at his hearing to get the boot. But the craziest thing of all is that his views matter so much.

Not to suggest that the appointment of a new justice is not supremely important, but with all of the uproar, it is almost as if the law begins and ends with the Court. It doesn't. The fact that it seems to these days is a sobering judgment about popular politics.

"Social movements, not just Supreme Court justices, make law," contends professor Lani Guinier, who, with her public-interest background, tries to teach Harvard law students that there is life and duty beyond aspiring to be the next John Roberts.

In fact, all of the precious gains that seem to hang in the balance with a new justice only came about because people took to the streets. Feminists marched, people of color and the poor mobilized, environmentalists and anti-war activists protested—and the government reacted. Congress passed laws to meet the people's demands. The Supreme Court paid heed, if only to preserve its legitimacy as the third branch of a democracy.

What is more, the big cases did not end up before the justices by accident. Some of the ones that made the greatest difference were handpicked and very strategically litigated when popular movements suggested the time was ripe.

Yet many decades after the women's liberation movement began, the fate of women's reproductive freedom is still said to hinge on the political views of one man.

Half a century since the civil rights movement, blacks are still disproportionately poorer and deprived of sound education, and they are more readily incarcerated than ever. But efforts to remedy the roots of such inequalities are labeled "affirmative action" or "politically correct," and the many laws at issue are, again, said to be vulnerable because of one man.

Even after the ugly lessons of the Japanese internment camps and the McCarthy era, civil liberties remain imperiled by a fear-mongering executive branch, and again, it is said they could be saved or sacrificed by one man.

That the advances of several generations seem at all endangered by one man's donning a robe should be a wake-up call to little-D democrats. The lull of a historically long 11 years since the last Court appointment is over. Decades after the peak of the major social-justice movements, the moment has arrived for people to decide whether to wrest the nation back from the privileged few.

The potential for galvanizing progressives and moderates is the silver lining of the Bush administration's court-packing agenda.

A louder and broader model seems to be needed than a few lobbying groups e-blitzing the nation with bullet points about the nomination of Roberts. Guinier, who started out as a civil rights activist, hopes for "the emergence of an emboldened progressive movement that builds from the people up rather than from the elites down."

For those worried about Roberts and despairing over the unknown next Bush appointment to the Court, there is a livelier option than head shaking. Why not take that energy and begin to mobilize a long-term, popular movement? Build toward 2008. Try to assemble, despite gerrymandering, a more accountable Congress next year. Not just with slogans, but with real change—easier and sounder voting processes, minority-supportive districting, inclusive leadership rather than cults of personality. That could bring more power to people most vulnerable to shifts in criminal, property, and civil rights laws—people who are currently shut out of the process.

In the past, a strong, progressive coalition has given ammo to the justices who looked to the wishes and needs of the workaday majority, fueling bold decisions for racial and gender equality and for labor rights. And it wasn't always just the liberal justices who responded. There is no reason that kind of lawmaking can't happen again.

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