We now could be one vote away from First-Amendment Armageddon. A “swing vote” is gone. A combination of the retirement of Justice Sandra Day O’Connor and the overwhelming control of the White House and the Senate by the Religious Right is a recipe for disaster.
While everyone was expecting the retirement of ailing Chief Justice Rehnquist, and a resulting, like-minded replacement who would serve to significantly extend the duration of his conservative seat, the retirement of Justice O’Connor creates an entirely different situation because, relatively speaking, she was on the fence.
She wrote key opinions in two of the very few significant – but close – adult-industry victories of this era, FW/PBS v. City of Dallas, 493 U.S. 215 (1990), placing severe limits on licensing of expressive adult businesses, and City of Los Angeles v. Alameda Books, 535 U.S. 425 (2001), allowing for the first time challenges to the bona fides of municipal regulation of adult businesses.
If President Bush has his way, Justice O’Connor will be replaced by someone philosophically aligned with Justices Scalia and Thomas, along with Chief Justice Rehnquist or his successor. The net result will be four, solidly conservative votes, almost certain to vote without exception against erotica in every case. If the opposition can garner one more vote on any issue, speech and the First Amendment will lose.
That, however, is not the worst of it. When President Bush’s replacement is sworn in on January 20, 2009, Justice John Paul Stevens will be approaching his 89th birthday. Justice Ruth Bader Ginsburg is now 72, and has reported health problems. There is a very real danger that President Bush could assemble the votes that he wants, and Justice Scalia would thereby garner a majority in every case involving erotic speech – Justice Scalia who, at oral argument in the case involving Playboy Television, asked, “do I have to assume, for purposes of this case, that what is at issue here is just what you call indecency and not obscenity?” That was the Playboy Channel, not Extreme Associates or anything like it!
Justices Breyer and Ginsberg are the only two on the Court who were appointed by a Democratic president. In the 12 years of the Carter and Clinton administrations, only two seats opened. In the 12 years of Reagan and Bush Sr., Justices O’Connor, Scalia, Kennedy, Souter and Thomas were installed – a majority of the Court – and Justice Rehnquist was elevated to Chief Justice. That Justice Stevens turned in to a faithful supporter of the First Amendment is a historical irony. And but for a Democratic Senate, we would have Justice Bork, rather than Justice Kennedy; and plainly someone far more conservative than Justice Souter would have been in place had it not been for President George Bush’s knowledge that the Democratic Senate would have bounced anyone who had expressed opposition to Roe v. Wade.
At no time in recent history has a Republican president been able to team up with a strongly Republican Senate as will now happen. This phenomenon arises from the fact that, under our evolving system of government, an unfortunate trend has developed. Party-line voting in Congress has left the judicial branch of the federal government totally in the hands of an ultra-conservative, small minority of the population. That is because the more heavily populated, urban, Northern states – particularly California and New York – are so underrepresented in the Senate and in the Electoral College; and comparably overrepresented are the rural states – the Dakotas, Montana, Wyoming and the like – and many states in the Deep South.
That has all played out because of the odd system of our federal government, a system that was ingeniously created in Philadelphia during the 18th Century by a small group of wizards who had a dire need to unite this very diverse land. A truly democratic form of government was unworkable, largely because of the tension between the slave-owning South and the more densely populated, industrial North. The “miracle at Philadelphia” pounded out the compromise, whereby a very limited federal government would be operated as essentially a coalition of state governments, rather than a true representative democracy. Only the House of Representatives would be actually democratic, and that primarily because it was believed necessary to control spending (Recall that under the Constitution, appropriations bills always must be initiated in the House.).
Under the compromise, the president would be chosen by the Electoral College, a group of representatives sent from the states according to a compromise formula. Senators would be appointed by the state legislatures, direct election of senators not emerging until a 1913 constitutional amendment. The Supreme Court came from the president, with the “advice and consent” of the Senate. So, the only component of the federal government that was a truly representative democratic body was the House. And, importantly, this country was a very different place then – largely rural, and very disconnected, at least in comparison with today’s world that is a network of electronic communications and discount jet fares.
In fact, it was not until 1962 that the Supreme Court imposed a “one man one vote” requirement on the states, a principle that to this day does not apply to the federal government, all attributable to the tragedy of slavery and the constitutional compromise that was necessary to unify a patchwork of states into a strong union that could survive.
So long as the socially liberal branch of the Republican Party continues to vote in lock step with the Religious Right, the Evangelical Conservative Republicans will control our national government. The question is whether a Ross Perot-type independent can ever wrestle control away from them in the Republican Party, or a fiscal conservative can take over the Democrats, swinging the vote away from the small states that now control things.
Supreme Court justices are appointed for life, a factor that cuts two ways. On the one hand, the conservative(s) that President Bush will appoint will be there for many years. On the other hand, a life appointment disconnects the appointed justice from any political allegiances, as demonstrated by, for example, Justices Warren, Brennan, White, Blackmun, Stevens, O’Connor, Kennedy and Souter. But that factor is diminishing. The scrutiny given potential appointments by the Republicans is now focused heavily on avoiding the appointment of “mistakes” – as they view them – like some of the above. More significantly, President Bush need not worry so much about the kind of senatorial veto that met the nomination of Robert Bork who, if confirmed, would now likely be the most conservative justice on the Court.
Clyde DeWitt is a partner in the Los Angeles law firm of Weston, Garrou & DeWitt. He can be reached at [email protected] or via the AVN office.
