A Real Litmus Test for the Supreme Court

By Paul Gessing

Now that Sandra Day O’Connor has retired, opening a vacancy on the Supreme Court, average Americans – those of us who are not stridently pro-choice or pro life – need to consider what they personally want from the next justice. After all, the special interest groups are mobilizing their multi-million dollar war chests and running television ads both in support of and against Bush’s next nominee.

Unfortunately, it is often difficult to pin judges down on the issues. Instead, more theoretical issues like “jurisprudence” and the role of the judiciary dominate the debate and serve as proxies for the important philosophical underpinnings of the most powerful group of people in the world.

More important than case law is a basic understanding of the U.S. Constitution. If you want to sit on the nation’s highest court, you should have no problem siding with the American people and the Constitution on the following five cases that the Court got wrong. Although not all of these decisions were made by a bare 5-4 majority, for various reasons, they are all cases that take away Americans’ freedoms through misinterpretation or misapplication of the Constitution. The following cases should provide the “litmus test” necessary for deciding who the ninth justice will be:

1. Kelo v. New London (2005): The Founding Fathers would be rolling over in their graves if they knew that the Supreme Court had interpreted the Fifth Amendment clause “nor shall private property be taken for public use, without just compensation” to mean: “private property can be taken for any use the Legislature or local officials deem appropriate.”

Among other things, The Court ruled that if you pay more in taxes to the government, you have a greater “right” to a given piece of land than someone who can’t pay as much in taxes. Wait until they start taking churches (non-profits that pay no property tax) in order to build a new Wal-Mart.

The Court’s decision was based on deference to the whims of legislative bodies. As Sandra Day O’Connor wrote in dissent, “The court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use.” Apparently, given the Court’s earlier decision in the Raich case, that despite state legislative desires to allow their citizens to use marijuana for medical purposes, the Court should only defer to legislative or electoral will if it restricts rather than expands freedom.

2. Gonzales v. Raich (2005): Although the mainstream media intently focused on the fact that this case involved medical marijuana and it ended up due to the Court’s 6-3 decision as a repudiation of medical marijuana, the Court’s decision is most importantly the final death knell for any reasonable interpretation of “state’s rights.”

It took exactly 214 years – from the ratification of the United States Constitution in 1791 until 2005 – for the country to transform itself from a nation made up of states under the umbrella of a federal government to country in which the federal government dominates all aspects of policy making and leaves states control over a few budgetary matters.

The Court decided that the federal government has the power to override state laws on medical marijuana regardless of whether any cash transaction is ever made and regardless that the drug is produced and consumed in a single state in which patients are legally authorized to use marijuana. If the federal government can regulate activities using the “Interstate Commerce Clause” that are not interstate and don’t involve commerce, then any and all behaviors are open to federal control.

3. Campbell v. Clinton, In this case, 17 members of Congress sued President Clinton for engaging in the bombing of Yugoslavia in 1999 in direct violation of the “War Powers Act.” The War Powers Act permits the president to introduce the military into combat “where imminent involvement in hostilities is clearly indicated by the circumstances.”

The Act was passed by Congress in 1973, shortly after the Vietnam “police action” debacle, because Congress wanted to ensure that no future president could send troops into battle without just cause and congressional oversight. Congress was determined that the “imminent involvement due to the circumstances” clause be satisfied in future military efforts as evidenced by the fact that this language appears in the act four times.

The act further stipulates that the president has 60 days to obtain from Congress a declaration of war, or specific approval for the continued use of the military, otherwise the troops must be withdrawn.

In Campbell, the court ruled that since Congress had neither approved of nor blocked continuation of the military campaign in Yugoslavia, there was not a constitutional impasse, and therefore there was no need to issue a ruling. Combined with Congress’s complete dereliction of duty regarding all military adventures undertaken by the executive branch since 1945, we now have a de facto imperial foreign policy system under which one person can take the nation to war for whatever reason they choose. At the very least, any prospective nominee should be duty bound to restore the War Powers Act.

4. Another case that demands redress is the case of Hiibel v. Sixth Judicial District Court of the state of Nevada. In this misguided decision, the Court ruled that Police have a right to stop anyone for no reason at all, demand their name and jail them if they refuse to comply.

The court ruled that forcing people to give police their names does not violate their Fourth Amendment protection from unreasonable searches. The Court also said name requests do not violate the Fifth Amendment right against self-incrimination, except in rare cases.

Though the ruling stopped short of allowing police to demand identification, like driver’s licenses, the precedent has now been set for future rulings that will force law abiding citizens to give their “name and papers” to any police officer that demands these documents. I am not going to fall into the trap of calling such developments reminiscent of Nazi Germany, however, the newfound ability of police to stop you on the streets for no reason, the creation of a national ID system complete with a federal database, and the ongoing development of identifiers imbedded within drivers’ licenses that can be read from a distance are all troubling.

5. McConnell v. S.E.C.: Although this decision was popular with many so-called “progressives,” it is hard to believe that anyone really benefits from restrictions on free speech, especially political free speech. The possibility that political speech by “bloggers” could face restrictions under this law is one of the most troubling restrictions.

The restrictions placed on free speech under campaign finance reform and the Supreme Court’s willingness to go along with them was based on the argument that Congress can legally ban citizen contributions to political bodies like the Republican and Democratic national committees for activities like get-out-the-vote campaigns and silence political speech expressed in radio and TV issue ads beginning 60 days before a general election and 30 days before a primary as an attempt to “avoid the appearance of corrupting influence.”

During the 2004 election cycle, the “527” phenomenon that pitted the Swift Boat veterans versus MoveOn.org was apparently considered less corrupting than the previous restrictions that allowed for an array of groups to involve themselves in the political process. Unfortunately, if you take the Court’s logic seriously, Congress has every right to restrict all forms of election speech as long as the “ends” have the veneer of legitimacy.

Of course, Congress and President Bush are equally to blame for passing such a heinous piece of legislation, but there is no question that the Courts should have spoken out as the voice of reason on behalf of the First Amendment and the freedom of all forms of speech.

The Supreme Court’s influence on the daily lives of Americans cannot be denied and it is most certainly rising. With vast armies of special interest groups already at war over abortion and a handful of other issues over which the fur is sure to fly, the rest of us need to have a clear idea what to look for in the next nominee.

Paul Gessing is a Senior Editor of the Free Liberal.