Supreme Court plays politics

Supreme Court plays politics
July 4, 2004
BY WILLIAM O'ROURKE
Chicago Sun Times

The Rehnquist Court has once again revealed itself as the most politicized in American history. Last year, in deference to the upcoming presidential campaign, it had agreed to hear a number of politically charged cases (the godless Pledge of Allegiance, Dick Cheney's secret list of energy advisers, various terrorism cases, Internet porn) in order to throw more fuel on the culture-war fires, hoping to bestir President Bush's base. After launching these issues into the political atmosphere for months, in the last two weeks the court sent most of them back to lower courts on technicalities, in order to avoid a firestorm of criticism and still let them play out their role in the election.

This court may be divided, but it does orchestrate its decisions collectively in order to present one face to the public. In the Pledge of Allegiance case, it turned itself into a divorce court, deciding that the father had no standing to bring his anti-"under God" pledge suit. And in Cheney vs. U.S. District Court, the controversial energy task force case, the Supremes (including Cheney's duck-hunting companion, Antonin Scalia) sent the case back to a lower court until it is clear whether Cheney will remain vice president for a second term.

The Padilla, Hamdi and Guantanamo habeas corpus cases were more judicial bait-and-switch sidesteps. In the case of Jose Padilla, a U.S. citizen who was detained at O'Hare on suspicion of plotting terrorism, the court decided his case was filled in the wrong court, another election hot potato deferred.

Sandra Day O'Connor was the swing vote in the 5-4 Padilla decision, this time opting to go with the four firmest pro-Bush judges to send the case back, thereby sparing the Bush administration any further embarrassment over the largely botched Padilla matter. And O'Connor was the "controlling opinion" in the Hamdi case, legitimizing detention as an "enemy combatant," but granting that because Hamdi, like Padilla, was a U.S. citizen, he did retain some minimal rights to use American courts, even though he was picked up in Afghanistan by the Northern Alliance.

Only Clarence Thomas thought Hamdi was entitled to no rights at all, once again burnishing his pro-incarceration credentials. O'Connor continues to play her decisive role, still reluctant to relinquish her seat on the court, perhaps out of fear of whom Bush would nominate in her place. Being the court's least predictable swing vote makes her the most important justice, and she knows Bush would appoint no swing vote in her place.

The Guantanamo case was decided 6-3 in favor of minimal rights for foreign prisoners. Anthony Kennedy joined O'Connor as a second swing vote, but the majority seemed flummoxed, because they all agreed that "executive imprisonment" was "oppressive and lawless," yet, given the war-on-terror climate, an obvious remedy was not at hand. The ruling allowed that the detainees had some slight procedural rights if they could find lawyers or district courts in which to plead them. Justices Scalia, Rehnquist and Thomas howled in dissent, denouncing the expansion of habeas corpus to the "four corners" of the world.

A decidedly mixed bag of justices sent the Internet porn case back to a lower court, suggesting parents rather than government should tend to the policing of minors' access to Internet porn. Justices Stevens, Kennedy, Ginsburg, Souter, along with Thomas (showing his continuing soft spot for porn), were the free speech -- and free market -- advocates this time, with the message: Let software filtering firms thrive!

That this Supreme Court would gauge its decisions based on the winds of the presidential campaign is not unexpected, given its singular role in the election of President Bush.

The Rehnquist Court gave birth to the Bush presidency and it looks after its own, even if the court (in the person of Justice O'Connor) had to remind its headstrong youngster via the Hamdi case that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Children need to learn, but they do not always follow their parents' rules. This Nov. 2, given the likelihood some justices will -- at long last! -- retire, the public will get to vote for who controls all three branches of government: the executive, legislative and the judicial.