Posted on 07/18/2005 2:55:36 PM PDT by The_Macallan
In the 1943 landmark Supreme Court decision of 'West Virginia v. Barnette', while America was fighting for its very existance in WWII and the American people were united as ever in that cause, the Supreme Court abandoned "mainstream" public opinion and sided with the much-maligned Jehovah's Witnesses who refused to recite the pledge allegience and salute the flag. Writing for the Court, Justice Robert H. Jackson rightly stated, "The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities..."
Ironically, today we have Senators who are responsible for confirming Supreme Court nominees angrily demanding that any nominee put forth for confirmation should march in lockstep with the "mainstream" of current political and social opinion - that interpreting the Bill of Rights SHOULD be subject to the "vicissitudes" of majority public opinion. Would these same Senators have objected if Justice Jackson and the rest of the Court had followed "mainstream" opinion of their day and ruled instead that there was something deeply suspect and potentially dangerous about any American who refused to say the pledge of allegience especially during the height of WWII?
Likewise, how "mainstream" was Justice William O. Douglas when he, in the groundbreaking 1965 case 'Griswold v. Connecticut', coalesced the Bill of Rights to create "penumbral rights of privacy" which had never been so sweepingly established before? In that case, in which Estelle Griswold opened a birth control clinic to dispense contraceptives in violation of Connecticut law, the Court, in striking down that law, obviously veered far off the "mainstream" to conjure up the previously unheard of concept of a "zone of privacy" out of the shadows of the 1st, 3rd, 4th, 5th, 9th and 14th Amendments. Such a controversial idea as finding basic rights hidden in the "penumbras" of the Bill of Rights was hardly coming from the "mainstream" of judicial thought at the time. Yet many Senators today who vehemently support that controversial interpretation are demanding that any Supreme Court nominee be stamped in the cookie-cutter tradition of "mainstream" thought with the obvious intent that no incoming Justice would have any such thoughts of veering off the plantation of current "mainstream" jurisprudence even as Justice Douglas did in his day.
The history of the Court is replete with "out of the mainstream" decisions and opinions that, often rightfully so, broke away from the "mainstream" of ideas and traditions held by the public and politicians of their time. Indeed that is the very purpose of the Court, to be not just a rubberstamp for public opinion on legislative acts but to be an anchor which keeps public policies and laws from veering too far away from constitutional foundation of our government and the constitutional principles of delegated powers and limited government.
Where was the "mainstream" opinion on the 1993 decision in 'Church of the Lukumi Babalu Aye v. Hialeah' which allowed ritual animal sacrifice by adherents to Santeria? What about the 1985 case of 'Wallace v. Jaffree' in which the Court went way overboard in abolishing the religious-neutral practice of observing merely "a moment of silence" in public schools? And where was the outrage and condemnations from these same Senators when the Supreme Court rejected the "mainstream" will of the people in the 1996 case of 'Romer v. Evans' where the Court struck down a majority-approved referendum amending the Colorado state constitution that would have prohibited establishing special rights or privileges specifically for homosexuals in Colorado.
And surely any notion of adhering to the "mainstream" was cast aside in the 1971 case of 'Swann v. Charlotte-Mecklenburg Board of Education' whereby the Court ruled (in opposition to majority public opinion) that forced busing of children was an appropriate remedy for the perceived problem of racial imbalance among schools, even where the "imbalance" had nothing to do with racism or intentional segregation. Many on the left strongly approved this decision which went against "mainstream" opinion then. Of course it veered away from the mainstream towards the left so apparently that was okay with them since it supported their ideology.
In fact, the Swann case grew out of yet another "out of the mainstream" Court decision, probably one of the most significant cases in our nation's history - the 1954 case 'Brown v. Board of Education' which blew the "mainstream" status quo of race relations in this country at the time right out of the water. Should the Court have supported the "mainstream" view for that decision whereby segregation was commonly accepted at that time and only 16 states prohibited it?
Over and over again the Court has reached so many decisions that flew in the face of current "mainstream" public opinion and judicial traditions. 'Gideon v. Wainwright', 'Miranda v. Arizona', 'Escobedo v. Illinois', landmark case after landmark case with each one standing as beacon of constitutional principle cutting through the murkiness of "mainstream" traditions at the time they were decided.
In fact, a hallmark of so many of the most significant Supreme Court decisions throughout history is that they are INDEED "out of the mainstream" of the judicial and social traditions of their time. Establishing precedent in the face of longstanding injustice necessitates a break from the "mainstream" status quo. That won't come if we demand that incoming Court nominees all continue to be cut from the same "mainstream" cloth of judicial temperment - ESPECIALLY when that cloth of judicial temperment is stamped with a clearly left-leaning pattern.
Presidents have the authority to nominate Justices who will interpret laws in light of the Constitution without being constrained by political tinkering and it is not in the scope of the US Senate's "advise and consent" role to demand an ideological litmus test for these nominees nor is it stated or implied anywhere in the Constitution that the role of the Senate is to ensure that only "mainstream" status quo perspectives be represented on the Court.
Requiring that any qualified Supreme Court nominee be within the "mainstream" of social and judicial thought (whatever that "mainstream" view may look like from the left) is tantamount to guaranteeing intellectual inbreeding and philosophical stagnation on the bench. Furthermore, insisting that the opinions and perspectives of qualified nominees fall in line with current political and public opinion creates a precarious and unwarranted coupling of longstanding constitutional interpretation to the vascillating public opinions of the day. Institutionalizing "mainstream" opinion on the Court is the surest way to stifle diversity of thought on the bench and cast the interpretation of constitutional principles to the whims of contemporary populism.
We should heed the words of Justice Robert H. Jackson when he stated in that landmark 1st Amendment case back in 1943, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox [i.e. "mainstream"] in politics, nationalism, religion, or other matters of opinion...".
Likewise, one might even say it's obvious that an admonition against Senators demanding orthodoxy on the Supreme Court can be found in the "penumbra" of Justice Jackson's statement.
Good stuff Mac.
What is the definition of "Mainstream America?" I am pretty well convinced it is not Reid or Kennedy or Pelosi. Could the Mainstream be the majority of people who voted for President Bush? In other words, how can the Minority be Mainstream?
I heard on Hannity today that the WH is saying that their judge will be "mainstream".
If you are to believe the polls: The mainstream is a conservative, bible believing (including Genesis) pro-life, pro-gun, anti-government intrusion in our lives, anti-taxation, anti-criminal, Pro-teaching American history in the schools person.
I am willing to bet that this is not the description that Bush is operating by. I think he is probably talking about another Souter. Conservatives need to get on the high horse and stump against this "mainstream" idea as soon as is possible or we will have another liberal on the courts.
The Left also abuses and misuses the term 'mainstream' for their own purposes. Imposing gay marriage is out of the American mainstream, but everyone who is honest knows full well that the type of judge favored by the Dems/Left is the type would would do just that.
But anyway, one unfortunate thing is how some of the Court's decisions seem to gain a certain momentum or gravitas over time that pushes public opinion. Most Americans oppose abortion on demand and support at least some major restrictions on it, yet they also oppose overtuning Roe -- the decision that makes those popular restrictions almost impossible. Part of that could be misinformation from the press and Left, i.e. the mistaken belief that overturning Roe will in and of itself make abortion illegal. But part of me suspects that some of the support from Roe, even from those who claim to be personally pro-life, comes from their treating Sup Court decisions as though they were the word of God.
As long as Bush and his people don't define 'mainstream' the same way that the media and the Dems/Left does, and instead define it by the positions held by most Americans on most of the hot-button issues facing the Court, then it will be fine.
As others have stated, most Americans oppose gay marriage. Most don't think illegal aliens should be given status akin to citizens. Most oppose abortion on demand (yet they support Roe...but I think that if Roe were overturned, then support for Roe would fade the people who are marginally pro-choice realize that the procedure remains mostly legal in large parts of the country). Most believe that the Second Amendment protects an individual right, not a collective one. Most don't think private property should be seized for shopping malls. Most don't think that the Boy Scouts should be bullied by radical homosexual activist groups.
I think the GOP has done a pretty bad job fighting for the word and mantle 'mainstream'. Of course they are at a disadvantage with the Left's domination of the mainstream media, but that is no excuse for being timid when extremists like Ted Kennedy and Ralph Neas have the nerve to get up and try to speak for mainstream values. Several times now I've heard Dems/Left spokesmen speak of judges like Ginsburg being mainstream because they got over 90 votes from the Senate. That is absurd of course, as all it proves is that either (a) the GOP has been AWOL in fighting the Court-imposed social/cultural revolution, or (b) the GOP didn't want to sink to the levels of the Dems and do to her what they did to Bork. Maybe its both, but at the very least the GOP could point out how Scalia too was confirmed with over 90 votes, so if that is a mark of being 'mainstream' then Bush should have no qualms about nominating someone in the Scalia mold.
He shouldn't anyway, as he should live up to his campaign promise to do so, but you never know.
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