Thursday, September 11, 2008

This is the most important election in a generation and no one is talking about why

I decided to start this blog for a lot of reasons -- but one of those reasons is that this election is incredibly important for one huge reason that no one is talking about it. Don't get me wrong, there are lots of issues at stake here -- concrete issues -- like the implementation of universal healthcare or the differences between Obama and McCain's tax plans. There are also more ephemeral, or perhaps esoteric, issues at stake -- like Obama's notion of regime change versus the GOP's recently adopted theme of change. But all these discussions miss the point. This election is important because of the Supreme Court. But again, it's not why you think. I'm not talking about Roe v. Wade -- although that is important too. I'm talking about the Switch in Time that Saved Nine.

In 1937 President Roosevelt had been attempting to drag the country out of the Great Depression with New Deal legislation. These federal laws, which we take for granted now, were seen by the court as radical at the time. In a series of decisions, the Supreme Court struck down federal law on the grounds that they violated the liberty of contract enshrined in the 5th Amendment. For example, the Supreme Court had ruled in Adkins v. General Hospital that the federal government could not enact a minimum wage law. Thus, on March 9, 1937, in his fireside chat, FDR announced a bill that would, when all was said and done, allow him to add six more justices to the Court. In what has become known as the "Switch in Time that Saved Nine," Justice Roberts suddenly switched from the conservative wing of the court to the liberal wing of the court in West Coast Hotel Co. v. Parrish, overruling Adkins, and upholding a Washington state minimum wage law.

So what does this 1937 decision have to do with today's election? Well, the conservative wing of today's court, especially justices Scalia and Thomas, want to return the Court to pre-1937 jurisprudence. They are fundamentalist libertarians -- they believe in freedom of contract above all other rights, except when it conflicts with their own values. This is not my liberal take on the court, the justices admit as much in their holdings.

Although technically West Coast Parrish remains the law of the land, the Rehnquist court began to erode its holding in a number of decisions striking down federal legislation on the basis of the commerce clause. For example, in U.S. v. Lopez, the court struck down a law banning handguns in school zones on the grounds that it violated the commerce clause. The last time a court struck down a federal law on the basis of the commerce clause -- before the Switch in Time that Saved Nine.

Unfortunately, the conservative court isn't always consistent either. In decisions dealing with Oregon's marijuana laws, Scalia and the conservative justices voted the laws were okay. In abortion cases, the conservative justices have ruled that the federal law in question did not violate the commerce clause. Thus, liberals can't hope that a conservative court will simply rule for state rights and allow Californians or Hawaiians or New Yorkers to enact progressive legislation while other states do away with minimum wage laws.

Justice Stevens is 88 years old. Justice Ginsburg is 75. Unfortunately, they cannot sit on the court forever. If McCain is elected the danger is not that he simply puts someone on the Court who is willing to overturn Roe v. Wade. The danger is that he puts on a jurist who shares Scalia and Thomas's (and to an extent Alito's and Roberts') fundamentalist views of the Constitution. Like it or not, a court which consisted of just one more justice in their favor would have the power and the desire to bring the country to pre 1937 -- to Great Depression era -- law and jurisprudence.

We can survive four years of a Republican presidency -- we survived 8 years of Bush. What we cannot survive is 20 to 30 years (or more) of a federal government handicapped to the extent that it cannot enact any federal legislation -- unless it comports with the conservative justices' mores -- that means anti-abortion laws and anti-marijuana laws are in -- but gun control laws and social welfare laws are out. And again, because it's the court we are talking about, not just a president, this is an election where if the progressives lose, they lose for the next 30 years -- not just the next four.

The danger is real and no one is talking about it.


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