Posted by
Zero House on Thursday, June 26, 2008 1:27:23 PM
Yesterday conservatives and pro-law enforcement advocates were livid at the [Supreme Court] ruling that overturned five state's laws allowing for the execution of child rapists. As part of its opinion, the majority stated that the death penalty has historically been reserved for murderers, and not other violent crimes; a flawed argument when one considers that for decades many states had "Lindbergh Laws" making the mere act of kidnapping a capital offense, but I digress. The law was overturned by a simple 5-4 majority.
What a difference 24 hours can make. Today, conservatives and pro-second amendment advocates are celebrating the higher court's decision which overturned the District of Columbia's blanket ban on fire arms. Despite the left's protestations to the contrary, the second amendment remains as fundamental as it did when crafted by the framers. However, this was also a narrow 5-4 victory.
Our current US Supreme Court is divided along ideological lines. On the left we have Justices Souder, Stevens, Ginsburg, and Breyer; justices who believe in activism and legislating from the bench. Where else in history have we had a court completely obliterate history, law, and tradition with the recent "Gitmo" ruling which gave prisoners of war and foreign terrorists the same rights as US citizens to due process? What other court would find a constitutional basis for fighting "global warming," as this one did in April 2007 when it essentially ordered the EPA to implement more regulations. On the right we have Justices Roberts, Alito, Scalia, and Thomas. They are less likely to support judicial activism, and generally support a more narrow, constructionist interpretation of the US Constitution; not likely to invent a right out of whole cloth if you will. That position is more supportive of state and local governments to figure out most problems.
Whether a victory for the right or left, most recent decisons have been rendered with small 5-4 majorities. The wild card in all of this, the one who is close to 100% on the winning side of these decisions, is none-other-than Reagan appointee, Anthony Kennedy. What grates many of us is the knowledge that Justice Kennedy was the compromise choice, after Robert Bork's failed nomination. In the early years he tended to side with the right more often than not, though he did show a tendency to stray even in the late 80's and early 90's. In recent years, however, he has positioned himself as the court's "tie-breaker." I truly believe future editions of Webster's will provide photo of the esteemed justice next to the definition of the word "moderate."
While today Kennedy took the constructionist view and voted for the second amendment, he has sided with the left on many other decisions; siding with the ACLU, citing international law as he did when writing the opinion for a ruling which overturned a death verdict, and in general supporting big, intrusive government. Kennedy's position as the court's moderate, and tie-breaker makes him one of the most powerful men in America. While waiting for future decisions, Anthony Kennedy should be the one everyone looks at as the barometer for that case's ultimate decision. Kennedy also appears to be hostile to capital punishment in general, so stay tuned.
As troubling as this is, it could be much worse. Conservatives thinking about staying home in November, or voting for a third-party, should look at this situation very closely. Had John Kerry won in 2004, today's decision would have no doubt gone the other way, and we would be looking at a court with 6 leftists, 2 conservatives, and 1 moderate. An Obama victory, coupled with an increased Democrat majority in the Senate would mean years, if not decades in the wilderness.
Joe Allen