If you already have made up your mind to vote to re-elect President Obama, you don’t need to read this. In fact, don’t. Rather, go cast your early vote; get on the phone with everyone you know; drag them to the polls to vote for the Democrats; contribute money to the re-election campaign. You already know the danger.
“It’s the Supreme Court, stupid!” It also is the attorney general.
Rewind to 1968—before many of you were born. Bobby Kennedy was a lock to be elected president. Sirhan Sirhan took him out, and we got Richard Nixon. Nixon inherited four Supreme Court vacancies, giving him an opportunity to make good on his campaign promise to appoint “strict constructionists”—a code word for justices that would turn a blind eye to the Bill of Rights.
The four justices that Nixon appointed—Chief Justice Burger along with Justices Blackmun, Powell and Rehnquist—joined by Justice White would make the slim, five-justice majority that gave us the Miller test. Had Robert Kennedy survived to be elected, the character of the justices he would have appointed likely would have agreed with the four dissenters, probably either Justice Brennan, who would have held “that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” or Justice Douglas, who simply expressed “disagreement with the basic decision that held that ‘obscenity’ was not protected by the First Amendment.”
In 1980, amidst a sagging economy, Jimmy Carter lost his reelection bid to a charismatic Republican, Ronald Reagan. During Reagan’s first term, he appointed Sandra Day O’Connor to the Supreme Court, responding to immense pressure to appoint a woman. But going into his second term, Reagan made friends with and developed an enormous debt to the evangelical right. He appointed Ed Meese as attorney general—the chief federal law enforcement officer of the federal government and the filter for potential Supreme Court candidates with the overturn-Roe-v.-Wade litmus test. Meese was a committed devotee of the religious right and, accordingly, orchestrated a war on the then-exploding adult video industry.
Meese first rode herd over the Meese Commission, a crew of committed conservatives chartered to make recommendations on dealing with the supposed “problem” of pornography—not “obscenity,” mind you, “pornography.” The 1986 report of the Meese Commission, a nearly 2,000-page tome that quickly became the best-selling book in the history of the Government Printing Office because of its salacious exposé of the adult media industry, included a roster of recommendations for legislative and executive activities calculated to wipe it out. It brought us 2257, increased penalties and easy forfeitures for federal obscenity convictions, state obscenity-RICO laws and the attack of the Department of Justice on the adult video industry.
Meese also superintended the promotion of William Rehnquist to the chief justice slot, installation of Antonin Scalia as associate justice and nomination of Robert Bork as associate justice (whose nomination, thankfully, was defeated by a Democratic Senate). After a second nomination, Douglas Ginsburg, was withdrawn because he “inhaled,” Anthony Kennedy was the third choice; as you all know, that one backfired on the Republicans something fierce. (Don’t count on that happening ever again.)
The Department of Justice proceeded to terrorize the adult video industry, indicting materially every one of the comparatively small number of adult video companies in the San Fernando Valley. If you weren’t there, you can’t possibly appreciate the chill of coming to work wondering whether this would be the inevitable day that the FBI would show up with a search warrant. A lot of people went to prison for a long time!
George H.W. Bush did nothing to derail the runaway DOJ train that was mowing down an industry that, in spite of it, was exploding. Moreover, upon the stepping down of Thurgood Marshall, the first and then only African-American Supreme Court Justice and one of the last of the breed of brilliant defenders of the Bill of Rights to sit on the Court (along with Brennan, Douglas, Warren and others), President Bush I replaced him with Clarence Thomas, a move that poked every other American of his race squarely in the eye. Bush obviously knew that Thomas, then in his 40s and whose qualifications were credibly challenged, would be the only African-American on the Court for a generation and would defy the interests of all minorities.
Despite enjoying sky-high popularity during the Gulf War, Bush was defeated in 1992 amidst a sagging economy and against a very popular Bill Clinton. Clinton was sworn in on January 20, 1992. The DOJ’s obscenity unit was disbanded, the remains of it focusing on child pornography prosecutions. 2257 was upheld in 1995, but the Clinton Administration acted as if it did not exist.
By the time George W. Bush was sworn in on January 20, 2001, pornography was ubiquitous because of the Internet. But Bush II was of the Reagan-Meese ilk, appointing as attorney general evangelical John Ashcroft (after he had lost his bid for the Missouri Senate to a dead guy). There was no doubt that Ashcroft would follow Meese’s lead—until, that is, his mission was sidetracked a few months after his appointment when airplanes crashed into the World Trade Center and the Pentagon. Bush and Ashcroft had to know that chasing dirty movies when airplanes were crashing into buildings would not have engendered public favor.
However, after Bush started a couple of wars, fancying himself as a war hero (after his doubtful Air Force … er, National Guard career defending Galveston Bay), General Ashcroft resurrected his quest to crush pornography—a task something akin to trying to eradicate insects with rifles. Although tripping over his own feet in the process, he put together a new DOJ obscenity squad, which enforced 2257 and launched federal obscenity prosecutions.
Bush also installed John Roberts and Samuel Alito to the Supreme Court, carrying on the ultra-conservative agenda of the Rehnquist Court. Bush left the Court one vote short of that agenda, which included overruling Roe v. Wade (abortion), Lawrence v. Texas (sodomy) and most of the other decisions likely favored by readers of this magazine.
Even after the first term of President Obama, the evangelicals remain just one vote short of their Supreme Court agenda. One vote! And the four-justice block isn’t going anywhere.
Know this: If Mitt Romney is elected, the evangelicals are nearly certain to get their coveted fifth vote during his first term—and that five-vote majority will exist for at least a decade. That fifth vote is nearly certain to concur with the “evangelical block,” on behalf of which Justice Scalia said in his dissent in Lawrence v. Texas (and this should frighten the pants off of you):
“[In light of the Court’s decision that Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct is unconstitutional,] [s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of ... validation of laws based on moral choices.”
Justice Scalia thinks masturbation is, or at least should be, illegal! And whose morals was he talking about, anyway?
