LOST: One Presumptive Candidate's Spine!

Subject: Re: LOST: One Presumptive Candidate's Spine!

NYTimes wrote: There are still vital differences between Mr. Obama and Senator John McCain on issues like the war in Iraq, taxes, health care and Supreme Court nominations. We don’t want any “redefining” on these big questions. This country needs change it can believe in.

We are not shocked when a candidate moves to the center for the general election. But Mr. Obama’s shifts are striking because he was the candidate who proposed to change the face of politics, the man of passionate convictions who did not play old political games.

July 3, 2008
Editorial
A Supreme Court on the Brink

In some ways, the Supreme Court term that just ended seems muddled: disturbing, highly conservative rulings on subjects like voting rights and gun control, along with important defenses of basic liberties in other areas, including the rights of detainees at Guantánamo Bay, Cuba. The key to understanding the term lies in the fragility of the court’s center. Some of the most important decisions came on 5-to-4 votes — a stark reminder that the court is just one justice away from solidifying a far-right majority that would do great damage to the Constitution and the rights of ordinary Americans.

The Supreme Court abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter ID law. Critics warned that the law, which bars anyone without a government-issued photo ID from voting, would disenfranchise poor people, minorities and the elderly, all of whom disproportionately lack drivers’ licenses. The critics were right. In the Indiana presidential primary, shortly after the ruling, about 12 nuns in their 80s and 90s were turned away at the polls for not having acceptable ID.

In another sharp break with its traditions, the court struck down parts of the District of Columbia’s gun-control law. After seven decades of holding that the Second Amendment’s right to bear arms is tied to raising a militia, the court reversed itself and ruled that it confers on individuals the right to keep guns in their homes for personal use. The decision will no doubt add significantly to the number of Americans killed by gun violence.

Corporations fared especially well in this term. The court reduced the punitive-damages award against Exxon Mobil for the 1989 Exxon Valdez oil spill from $2.5 billion to about $500 million, a pittance for the energy company. In the process, the court declared that in maritime cases, punitive damages should not exceed the actual damages in a case. It is a rule that foils the purposes of punitive damages: to punish and to deter bad conduct.

In the term’s most cold-hearted decision, the court endorsed Kentucky’s use of lethal injection to execute prisoners. Despite evidence that the procedure that Kentucky uses can cause excruciating pain, the court ruled that it does not violate the Eighth Amendment prohibition on cruel-and-unusual punishment. It was a squandered chance to set rules requiring that executions be carried out as humanely as possible.

There was some undeniable good news. The court came through with a critically important decision in favor of the detainees being held in Guantánamo Bay. It ruled that they have habeas corpus rights: the right to challenge their confinement before a federal judge. The decision was the court’s third rebuke to the Bush administration on Guantánamo and a major win for the Constitution and the rule of law.

In a second capital punishment case, the court ruled that the death penalty cannot be imposed for the rape of a child. Horrific as that crime is, the court wisely drew a clear line and said that capital punishment can only be imposed for crimes in which the victim’s life was taken.

The court also issued several welcome rulings in favor of workers, including employees who charged that they were retaliated against for accusing their employers of discrimination. It was a reversal from last year, when the court issued a much-criticized ruling against a woman who was discriminated against in pay, baselessly deciding that she had filed her complaint too late.

In placing these rulings in the larger context of the court after two appointments by President Bush — Chief Justice John Roberts and Justice Samuel Alito, both dedicated members of the conservative movement — it is important to note that the Guantánamo decision was 5 to 4. Anthony Kennedy, the court’s swing justice, cast the deciding vote. In other cases, like the gun-control decision, the rulings might have been more sweeping and more damaging if the conservative bloc had not needed the moderate-conservative Justice Kennedy’s vote to form a majority. One more conservative appointment would shift the balance to the far-right bloc.

If that happens, the court can be expected to push even further in a dangerous direction. It would most likely begin stripping away civil liberties, like the habeas rights vindicated in the Guantánamo case. The constitutional protection of women’s reproductive rights could be eliminated. The court might well strike down laws that protect the environment, workers’ rights and the rights of racial and religious minorities.

The court was teetering on the brink in this term. Voters should keep that firmly in mind when they go to the polls in November.