Gore, Bush, and the Supreme Court

by Alexander Cockburn

We hear this sort of refrain every four years. This time around, the alarums are becoming especially shrill because the Democrats fear that with little of substance separating the two major candidates, many possible Gore voters will either stay at home or vote for Ralph Nader. What better way to drag these strays back into the fold than to tell them that by 2002, the Court could be stocked by Bush with two or three more justices like Antonin Scalia or Clarence Thomas, eager to drag the country into the Middle Ages, annul Roe v. Wade, and put the back-street abortionists back in business.

Now, talking of Roe v. Wade, which U.S .Supreme Court Justice, dissenting to that opinion, wrote these bitterly sarcastic words?: "The Constitution of the United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus." Yes, this was Byron "Whizzer" White, put on the Court by John F. Kennedy, a man of the same conservative Democratic profile as Al Gore. White disappointed liberals, the same way that David Souter, appointed by George Bush, disappoints conservatives today.

A Democrat in the White House is no guarantee of a liberal on the Court. Truman put up four, all of them awful. By contrast, Eisenhower nominated the great liberal William Brennan, and Gerald Ford picked John Stevens, the court's current liberal champion, and indeed, the only justice to rule against two oil companies in one of the recent batches of Supreme Court decisions. Nixon's nominee, Harold Blackmun, wrote the Roe v. Wade decision. Twenty years later, Bush Sr.'s nominee, Souter, wrote the Planned Parenthood v. Casey decision in 1992 reaffirming the "essential holding" of Roe v. Wade, and arguing that "choice" was now installed in the national culture. The Court echoed that view in its recent upholding of the Miranda rule.

And why had choice become thus installed; how was the "essential holding" being reaffirmed? Through the activity of social movements, through the political pressure of millions of people. The idea that our moral fabric, the tenor of our culture, the texture of our freedoms derived from the U.S. Supreme Court somehow depends on whom Gore or Bush may or may not nominate is ludicrous. The U.S. Supreme Court, like all ruling state institutions, bends in a benign direction only under the impulse of powerful social movements.

Throughout the nation's history, the U.S. Supreme Court has generally been a reactionary force, and it will no doubt be so whether Gore or Bush are elected in November, or whether the Democrats or Republicans control Congress. A partial exception was the Warren court, which had the coincidence of two great justices, Brennan and William Douglas, and which was prompted by the rise of the Civil Rights Movement and the political assertion of black people trying to head off more drastic social explosions. But let's remember the Warren Court was hardly progressive. It moved as it did only in order to take the wind out of building social unrest and revolts. The result was a consolidation of more power in a federal government that was unflinchingly hostile to the interest of working people, minorities and the environment.

Most progressives invest too much power in the Court, as if it were really an Olympian check against the Executive or Congress. It's not. It wasn't the U.S. Supreme Court that limited habeas corpus for people on Death Row, it was Bill Clinton's Effective Death Penalty Act, fully supported by Vice President Al Gore.

So, which is the more realistic political option: to vote for Al Gore, despite his generally awful political positions, because he might pick a judge who might turn out to be OK; or to look at Al Gore's recent record, which is not a matter of conjecture.

Affirmative action? The National Partnership for Reinventing Government, overseen by Gore, was denounced last year by the national legislative review committee of Blacks in Government as having been "generally silent about fairness and equality issues," and as having had "a devastating impact on federal government workers, particularly racial minorities." First Amendment? Gore was for censorship of the Internet, and fully supported his wife Tipper's efforts to install censorship in the recording industry. War powers? In the Clinton years, Gore has been the biggest hawk of all for executive action, unfettered by Congress. Constitutional protections and the Bill of Rights? Corporate power? Federal arrogance? The Clinton-Gore administration has been ghastly on these issues.

Would liberal Democrats want a nominee picked by a man with this political record? Actually, they couldn't care less. If they did care, they'd be out campaigning for Ralph Nader. All they want to do is scare the pants off liberals with the idea that Bush would finish off Roe v. Wade. It's a substantively vacuous and bankrupt position, but it's all they've got left.