June 8, 2008


In McCain’s Court (Jeffrey Toobin, May 26, 2008 , The New Yorker)

The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement. With the general election in mind, McCain had to express himself with such elaborate circumlocution because he knows that the constituency for such far-reaching change in our constellation of rights is small, and may be shrinking. In 2004, to stoke turnout among conservatives, Karl Rove engineered the addition of anti-gay-marriage voter initiatives to the ballots in Ohio and other states; last week, though, when the California Supreme Court voted to allow gay marriage in that state, only hard-core activists were able to muster much outrage. When it comes to the Constitution, McCain is on the wrong side of the voters, and of history; thus, his obfuscations.

Still, the Bush-McCain agenda for the courts has made great strides. Bush’s conservative appointees to the Supreme Court—John G. Roberts, Jr., and Samuel A. Alito, Jr.—have joined Antonin Scalia and Clarence Thomas in a phalanx that is more radical than any that the Court has seen since F.D.R.’s appointments. Those Justices allowed the New Deal to proceed, and set the stage for the noblest era in the Court’s history, under Chief Justice Earl Warren, when the civil and individual rights of all citizens finally received their constitutional due. By contrast, in just three years the Roberts Court has crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state. It’s difficult to quarrel with Justice Stephen Breyer’s assessment of his new colleagues: “It is not often in the law that so few have so quickly changed so much.” And more change is likely to come. John Paul Stevens, the leader of the Court’s four embattled liberals, just celebrated his eighty-eighth birthday; Ruth Bader Ginsburg is seventy-five; David Souter is only sixty-eight but longs for his home in New Hampshire. For all the elisions in John McCain’s speech, one unmistakable truth emerged: that the stakes in the election, for the Supreme Court and all who live by its rulings, are very, very high.

For a quarter century now Maverick has been one of the most extreme voices of consent on making the courts conservative again.

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Posted by Orrin Judd at June 8, 2008 2:46 PM

Translation (of Toobin):

"BUSH! BUSH! Conservatives! Aiee! The sky is falling, the sky is falling!"

And for the judicial-activist elites, it is.

Posted by: jim hamlen at June 8, 2008 3:25 PM

That evil Karl Rove engineered the Ohio Initiative. He really is all-powerful.

Posted by: pchuck at June 8, 2008 3:33 PM

Toobin implies people in CA don't care about the Court's ruling, yet 60% of them voted the other way just a few years ago. A bit slimy, there. Would the vote be different today? There is no evidence that it would.

And did he really say that FDR appointed radicals to the Court? He better watch out, or his dinner invitations are going to dry up.

Posted by: ratbert at June 8, 2008 3:45 PM

Plessy v Ferguson was decided after the 13th and 14th Amendments were passed. With that note I would say I am wary of an activist court.

Posted by: Mikey at June 8, 2008 6:16 PM

I'd gladly give my opinion of Jeffrey Toobin, but my mother always advised me to be circumspect with my opinions about narcissistic fools.

Posted by: Matt Murphy at June 9, 2008 12:57 AM
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