The Other War

The Bush administration & the end of civil liberties

Those who expect that elected officials and the courts will one day decide to restore our liberties have not spent much time looking at history. The Supreme Court has traditionally taken a hands-off approach to curbs on presidential power in wartime--and this, after all, is to be a war of many years' duration. Chief Justice Rehnquist wrote a prescient book on this subject; Justice Antonin Scalia has said, in essence, that the Bill of Rights is not a contract at all, just a rough guide that courts were free to treat as circumstances required. This sentiment was recently echoed by Justice Stephen Breyer as well.

The Supreme Court will likely hear the first cases to test the limits of the Patriot Act and other attacks on freedom in its 2003-2004 term. In the meantime, President Bush is handily convincing the Senate to approve his right-wing judicial nominees one after another. Once his judges don their robes, the federal judiciary will be, by some estimates, 65 percent or more conservative Republican. The Supreme Court has become so predictably political that the loss of just one liberal justice--or frequent swing vote Sandra Day O'Connor--will tip the court all the way to the right. And since Congress has amiably ceded its duty to uphold the Constitution in the laws it enacts, we will be left with exactly one branch of government, the executive.

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