GRASSROOTS/Hank Kalet

Strip-Search Ruling Highlights Judicial Stakes

In many ways, it does not matter who serves as president of the United States. Both parties are controlled by money. Both are part of the foreign policy establishment that keeps tossing money at the military and then finding pretenses to engage in international adventures.

There is a difference, however, and it was made apparent again in early April when the Supreme Court ruled that corrections facilities can strip search people arrested before housing them in jail, regardless of the offense even when there is no reason to suspect contraband.

The ruling, as the New York Times reported, “endorsed a recent trend” in several lower courts that allowed for strip searches of all prisoners – whether they were charged with “violating a leash law, driving without a license and failing to pay child support” or running guns and drugs.

The vote fell along ideological lines, as far too many do these days, with the five conservative justices – two appointed by the younger Bush, one by the elder Bush and two by Ronald Reagan – willing to grant corrections officers greater leeway. The four judges who dissented were appointed by the two most recent Democratic presidents.

The same vote breakdown decided the 2000 election, Citizen United (which allowed unlimited cash to flow into our electoral system), the Wal-Mart sex discrimination case, and the denial of a prisoner’s right to pay for his own DNA testing to exonerate himself.

Add to this a lengthy list of other 5-4 decisions on smaller matters and it is clear that the identity of each justice matters deeply. What does this tell us? It matters who is in the White House. The president is the one who appoints justices to the court – with advice and consent of the Senate – and that means that it is the president who puts his stamp on the court.

For much of the nation’s history, presidents focused little on the ideology of court appointees and the advice and consent function generated few fireworks.

In recent years, however, court appointments have become politically contentious as politicians, interest groups and right-wing think tanks have attacked the court for what they call its “judicial activism.” That has made decisions on whom to appoint among the most important a president can make.

Justice Clarence Thomas, for instance, has been one of the most (if not most) reliably conservative justices in history. He was appointed by the first President Bush in 1991 at the age of 43 and is likely to serve another two decades – nearly 40 years of ideological conservatism.

Add Antonin Scalia, Samuel Alito and Chief Justice John Roberts and you have a dangerous block of ideological right-wingers ensuring that few progressive ideas will survive court scrutiny.

Four justices are in their 70s – Kennedy, Scalia and the two Clinton appointees, Ruth Bader Ginsberg and Stephen Breyer – and the next president could get the chance to remake the court.

An Obama win would, at worst, prevent the court from slipping further to the right, while a win by presumptive Republican nominee could result in the replacement of the aging liberals with additional John Roberts-like justices.

So, while Obama has been a tremendous disappointment on so many fronts, he remains progressives’ best hope to slow the rightward march of the court, with a slim possibility that a more progressive court might be in the offing.

Hank Kalet is a poet and regional editor for Patch.com in New Jersey. Email grassroots@comcast.net, blog kaletblog.com.

From The Progressive Populist, May 1, 2012