Reply #45: Breyer is the Supreme Court Danger

[joyautumn]

In 2000 Nader said the most dangerous Supreme Court justice is Stephen Breyer, Clinton's 1994 appointee. Breyer is the Corporate appointment that Clinton "had to make" (Clinton wasn't really unhappy about it, I'm sure) to keep the paymasters happy after Ruth Bader Ginsburg. Breyer believes that it is inefficient for legislatures to write detailed laws, and prefers general directives from Congress which are then implemented in detail by federal agencies. His main obstacle in this effort is Scalia, who rails vehemently against any attempt to sanction Congress abdicating its lawmaking role to the Executive or Judicial branches.

Breyer tried to ram his agenda through a few years ago in a case where the FDA suddenly did a health review of tobacco products and decided to list it as a controlled substance, effectively making it a crime to make, buy, sell, use or possess cigarettes. The Supreme Court ruled that the FDA could not suddenly criminalize tobacco when obviously Congress had meant for tobacco to be legal when it wrote the laws twenty years earlier that the FDA regulations were implementing. Basically, under a Breyer-led majority, the Supreme Court would start ruling that federal agencies could interpret laws any way they see fit, including election laws under the FEC and environmental laws. This would save corporate interests the bother of having to lobby Congress and have ugly hearings and stuff. They just have to have private meetings like Cheney's Energy cabal and hash out the exact implementation of all regulatory laws.

As for Roe v. Wade, Ruth Bader Ginsburg has long been a critic of it because it puts women's reproductive rights on a very shaky foundation -- the privacy aspect of the sanctity of marriage in the Griswold decision was used to protect married couples from anti-contraception laws, then a decision extended the same privacy/sanctity right via equal protection to single mothers, then came Roe v. Wade. When Powell wrote Roe v Wade he was on notice from Justice Stewart and Justice Berger that a straight equality argument would not fly, so to get a majority he crafted a fragile privacy argument that, ultimately, led to the defeat of ERA.

For forty years, Eleanor Roosevelt and big labor had blocked ERA for strategic reasons I won't get into here, but they finally changed their strategy in Nixon's second term so ERA finally passed after nearly fifty years stagnation in committee.

So what has Ginsburg done to put reproductive rights on a stronger footing? Exactly what she said she would in her confirmation hearing -- by completing her life's work of putting sex equality on an equal footing to racial equality in Supreme Court doctrine and case law. She succeeded, with O'Connor's support, in the unanimous VMI decision forcing that all-male military academy to admit women or forego federal funding. This was the end of a two-tiered test of equality -- one for race and a lower one for sex.

So Roe v. Wade is not needed anymore. A direct weighing of women's rights against the rights of a fetus, even if recognized as a full human being, would only result in the same "viability" ruling given in Roe v. Wade.

Corporate interests are also very afraid that Roe v. Wade will be overturned, because while doing so would have no net effect on women's right to choose, it would strike a blow to the privacy rights of corporate "persons".

So yes, there is great danger in the next few Supreme Court appointments, but the danger is not from the Republican Party, whose appointments have included most of the architects of civil rights -- Berger, Brennan, Powell, O'Connor, Kennedy and Souter. They come from more Breyer-like appointees who have no respect for the balance of powers, and want to make the President into a king or dictator.