Newspaper article The Christian Science Monitor

Where We Are on This Fourth

Newspaper article The Christian Science Monitor

Where We Are on This Fourth

Article excerpt

INDEPENDENCE Day, the Fourth of July, is an occasion this year for Americans to reflect on how their Supreme Court may change with the departure of Associate Justice Thurgood Marshall.

It was a foregone conclusion that President Bush's nominee to replace him would be a conservative. The question was how conservative a nominee would the White House try to get past the Democratic-controlled Senate, which must approve all high court appointments.

The fight over the nomination of Robert Bork to the Supreme Court in 1987, which the Reagan White House ultimately lost, showed that the Senate cannot always be counted on to give the president his nominee.

The American polity is suspended between two poles: the Republicans, the party that keeps winning the White House; and the Democrats, the party that keeps winning the Congress. Neither branch alone can claim that it expresses the popular will.

But inevitably, the post-Marshall court will be different. As his parting shot, Marshall listed 17 "endangered precedents" at whose margins the high court has been chipping away. For those "in the mainstream" of society, this may not matter very much, but for those already on the margins themselves of American society, it will matter a great deal.

Over the past several years, senators examining presidential nominees to the Supreme Court have wanted to be sure they respected the principle of stare decisis, of letting decisions stand; today's high court seems to be quite eager to overturn certain precedents.

And now we hear talk of a "rollback" of rights, which seems ahistorical, if not downright absurd. An occasional correction, an adjustment to an earlier ruling that has clearly proven unworkable, perhaps. But to roll back a right is like reversing the flow of a river, or "undiscovering" a scientific principle.

This is not to say that there aren't real grounds for concern about the kind of country the United States will be without some liberal voices on its high court to balance the conservatives. And it should be noted that it is the authoritarian, or to put it more benignly, traditionalist strain of conservatism, rather than the libertarian, that has been coming to the fore of late. …

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