The Bush Legacy


George W. Bush's presidency will be remembered for an ill-advised war of choice, one in which thousands of American lives and hundreds of thousands of Iraqis were lost, one that fanned the flames of anger and rage in the Middle East and has left the nation's defenses worn and tattered.

But just as important will be the long-term impact that his judicial appointments will have on constitutional law deep into the future.

The impact could be glimpsed in November when the US Supreme Court case heard oral arguments on a case pitting environmentalists and state governments against the Bush administration over federal unwillingness to regulate greenhouse gases as air pollutants.

The plaintiffs in the case -- 12 states and 13 environmental groups -- sued, according to the New York Times, to force the EPA to "treat carbon dioxide and other heat-trapping gases as air pollutants," which would give "the agency the authority to regulate them."

"When a decision comes sometime before July," according to a story in the San Francisco Chronicle, "it could have a significant ripple effect that could extend to power plants as well as states' efforts to impose more stringent regulations on car tailpipe emissions."

This case is a prime example of the destructiveness of the Bush years. Not only does it demonstrate the narrow way in which his administration chooses to interpret regulatory statutes it does not like, but it has stacked the courts with judges who will endorse his narrow view.

Now, I know I'm jumping the gun on this one, but Chief Justice John Roberts and Associate Justice Samuel Alito had already shown themselves during their time on the lower courts to be lackeys for the corporate power structure (Roberts, for instance, had argued that that there should be limits on the Endangered Species Act).

And their behavior on the bench during oral arguments in this case did little to contradict their public personas.

According to the New York Times, Chief Justice Roberts and Justice Alito joined Justice Antonin Scalia in raising "strong doubts" that the plaintiffs could prove "there is an injury that can be traced to the defendant's behavior and that will be relieved by the action the lawsuit requests," that the states could show "that global climate change presented a sufficiently tangible and imminent danger that could be adequately addressed by regulating emissions from new cars and trucks."

If they vote as expected, that will create a fairly solid four-justice corporate block (including Justice Clarence Thomas), with four relatively liberal or moderate justices (Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter). The key, as court observers have been saying, will be Justice Anthony Kennedy, a relatively reliable conservative, but not as ideologically rigid as Scalia and Thomas.

Kennedy has been painted as the replacement for Justice Sandra Day O'Connor, who retired in the spring. O'Connor regularly acted as the swing vote on the court, sometimes voting with the liberals but just as often -- perhaps more often -- voting with the conservatives.

Kennedy is likely to swing further to the right than O'Connor, pushing a relatively conservative court along with him. But it is not Kennedy that forces the shift. It is the Bush appointees (the same kind of shift is happening at the lower-court level), making the election of a Democratic majority in Congress more important than anyone may realize.

And making 2008 another pivotal year for the future of the court and the country.

Hank Kalet is a poet and managing editor of the South Brunswick Post and The Cranbury Press. Email His blog, Channel Surfing, can be found at

From The Progressive Populist, January 1-15, 2007

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