Opinion Editorials, June  23, 2008

   
US Supreme Court: Not a place to court democracy

Ben Tanosborn

ccun.org, June 23, 2008

 
Ours is a government best described as the closest thing to a true democracy thanks to its touted system of checks and balances which, we are constantly reminded, maintains the three branches in some sort of equilibrium; thus serving this nation best, as well as the people who populate it. 
 
Poppycock, I say!  Whether we are fully aware of it or not, accept it or decry it, we are frightfully a yea or a nay away from one solitary individual determining our future, which cynically puts us at a level no different from that where benevolent monarchs of old and genocidal dictators of always have operated throughout recorded history.
 
A victory for democracy say some, after last week’s decision by the US Supreme Court to extend habeas corpus to the people now being held in Guantanamo without identity as human beings, up to now denied their human rights.  A tentative, lucky victory this time around as the decision squishes by with a 5 to 4 vote… and a defeat for Bush.  And that to me is scary… as scary as having B-2 bombers circumnavigating the globe with real, not imaginary, WMD’s… and a possible psychopath in the White House with the opportunity, at his discretion, to press that also real “drop‘em bombs” button.
 
Why is it scary?  Because on a whim or a prayer, or just a bad day with the mate, either Stevens, or Kennedy, or Souter, or Ginsburg or Breyer could have voted the other way; aiding the two juniors, Alito and Roberts, and Don Scalia and his squire, Thomas, to turn the decision the other way.  Just one vote defining a human rights’ victory, that to anyone who professes to believe in social justice is truly a Pyrrhic way to win!  And if that by itself doesn’t scare you, look at the list of landmark decisions that have been made in that great national divider that paints us red or blue, that puts us one over or leaves us one short.  Is ours a high tribunal system that simply is inoperative, one that doesn’t work well now and could turn out to be a nightmare, a SCOTUS (Supreme Court of the United States) earthquake?
 
Landmark decisions since 1989 have proven to be in 17 of 22 cases nothing but a confrontation of right and center politics where the decisions were made in 5 to 4 votes, regarding Privacy, Religion, Equal Protection, Free Speech, Drug Search, Cruel and Unusual Punishments Clause, Takings Clause and Powers of Congress.  Of the other 5 cases, 3 received what may be considered a consensus vote, and 2 a mixed vote.
 
It appears rather obvious that if 77percent of the key decisions made by the Supreme Court in the last two decades received voting in strict political conformity with the Justices’ political inclinations, the idea that members of the SCOTUS are supposed to make decisions based on the interpretation of the US Constitution is really the SCROTUM of political testes, nothing else.  To believe otherwise defies both, the art of political science and the science of mathematics.
 
A decision dealing with basic principles of human rights and dignity, such as the right of habeas corpus for the prisoners held at Guantanamo, would call for unanimity in any international court… 9 to 0 should have been the decision, not a political 5 to 4!  But we don’t believe in international law, and scoff at the mere idea of abiding by anything the International Court of Justice at The Hague might say.  In fact, the US will participate with world judicial bodies as long as that participation serves our needs… not justice. 
 
For four decades starting right after World War II the US accepted general jurisdiction of the International Court of Justice; then as an unfavorable ruling was given in 1986 (over the mining of Nicaragua’s harbors – remember the Iran-Contra fiasco?) the US withdrew from the court’s general jurisdiction.  That it did again 3 years ago, from the “optional protocol” this time.  As law professor Peter Spiro of the University of Georgia expressed after the latter withdrawal, “It’s a sore-loser kind of move.  If we can’t win, we’re not going to play.”
 
Is the Constitution of the United States so ambivalent as to create this division down the middle in the way decisions are rendered?  One would not think so.  Perhaps the structure of the Supreme Court, in every aspect, needs being looked into; and reformed, if we wish to have it as an independent branch of government, as well as a judicious collaborator in matters of international law… in contrast to the Executive Branch.  For now, our checks and balances dictum is in practice nothing but great-sounding spattering of empty words.  
 

Ben Tanosborn
www.tanosborn.com     
  ben@tanosborn.com
 

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