Order on the court?

By W. James Antle III
web posted July 10, 2000

The recent flurry of Supreme Court rulings show us precisely how big the stakes are in the 2000 presidential election. Our nation's highest court is perilously divided between jurists with respect for the written law and frustrated activists who wish to make their own laws.

In ruling on some of the most contentious issues of our day, with grave constitutional implications, proponents of ordered liberty were given mixed results by narrow votes. This is especially important to note inasmuch as the next president will likely name at least three Supreme Court justices. Let us examine the direction of our present judiciary, and the directions in which it could go.

First, by declining to even hear the case of Elian Gonzalez and thus permitting his forced repatriation to Cuba, the Court assented to the proposition that the law is whatever Janet Reno says it is. To define the rule of law in this manner is to sanction tyranny.

Consequently, young Elian has been returned to the same paternal care as the rest of Cuba - not that of his biological father, but of that aging dictator Fidel Castro. Because of his status as a symbol to Cubans who believe in freedom, his actions will be even more seriously circumscribed than most in that communist island prison. This did not enter into any discussions of his "best interest." Under a different president, disposed toward different types of judicial appointments, it may have.

Second, the Supreme Court voted 5 to 4 against abiding by the Constitution, respecting a state legislature's prerogative to make laws within its jurisdiction and acknowledging the state's obligation to afford legal protection to innocent human life. This is of course in reference to its abominable ruling against Nebraska's partial-birth abortion ban.

Partial-birth abortion, antiseptically described as "intact dilation evacuation" and "dilation and extraction" by its apologists, involves jamming scissors in the back of a live fetus' skull and sucking out the brains after a partial (often better than three-fifths) delivery. The procedure's inventor himself has admitted that it is normally practiced on healthy, viable fetuses for "purely elective reasons." The president of the National Abortion Providers' Federation, who admitted he "lied through his teeth" about the number of partial-birth abortions and the most common reasons for performing them, has corroborated this.

The American Medical Association, which generally supports legal abortion, endorsed banning the procedure after an expert panel concluded it was never medically necessary. Former Surgeon General C. Everett Koop has also attested to that fact.

The Court's ruling has no basis in constitutional law and violates federalism, separation of powers and simple common sense. Even if one attempts to harmonize this ruling with its equally unconstitutional prior holdings on the abortion issue, Roe v. Wade specifically declined to overturn the section of Texas' abortion law outlawing the killing of a fetus following partial delivery. The concern that Nebraska's statute would have been used to outlaw other more common abortion methods that do not fit as neatly within the court's viability framework as the procedure targeted by the ban also was unfounded. The law was not given any test run to see if it was applied indiscriminately and there is no concrete evidence of any intention or likelihood of prosecuting anyone for anything other than partial-birth abortion.

In an effort to avoid a "chilling effect" on those make their living by performing abortions, the Court has made it easier to kill children who survive abortions and blurred the line of legal protection both sides of the abortion debate thought began at birth.

By an identical 5 to 4 margin, the Supreme Court voted to overturn a New Jersey Supreme Court ruling that the Boy Scouts could not ban homosexual scoutmasters. Whatever your views on homosexuality, this decision was a clear victory for freedom of association. The Boy Scouts of America have the right to determine its own code of conduct, what constitutes adherence to it and the criteria by which its members and leaders may be chosen.

To rule otherwise would be to essentially outlaw private associations. A minority of one person, backed by the full force of the government, could decide to totally redefine a private association. Americans freely associating could not decide what message, moral or otherwise, to convey. They could not decide how best to convey it. They could not decide how to organize or with whom to associate even in the most private spheres of their lives. There would furthermore be no communal hedge, which is exactly what free associations offer, between themselves as individuals and their government.

Just these three rulings, without even mentioning the Court's recent decisions to restore the Tenth Amendment (by overturning the Violence Against Women Act), treat religious schools more fairly and continue to banish prayer from the public square illustrates the importance of judicial appointments. Our present Court has a precarious balance between constitutional government and judge-made law that the next president will have the power to tip more completely in one direction or the other. These rulings have real practical applications.

Bill Clinton has appointed 45 percent of the federal judiciary and his two appointees made him the first Democrat to name a Supreme Court justice since Lyndon Johnson. If Al Gore is elected, he will likely have the opportunity to insure that liberals comprise a majority of the Supreme Court and 60 percent of the entire federal bench. Yet we cannot place inordinate faith in George W. Bush to break this judicial activism and bring a constitutionalist majority to our courts either: The crucial defector in the Elian case was Anthony Kennedy, while the fifth vote in Stenberg v. Cathcart was Sandra Day O'Connor, both appointed by no less a conservative than Ronald Reagan.

The fate of the judiciary may well be a sound basis for deciding your presidential vote, but vigilance against judicial encroachment should not end on Election Day.

W. James Antle III is a former researcher for the Rhema Group, an Ohio-based political consulting firm. His commentaries now also appear regularly in OpinioNet.

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