Unconstitutional Ignorance on the Editorial Page

The same court which last week held up a vital civil liberty - individual gun ownership - is accused of "stripping away civil liberties" in today's lead editorial.

Thursday's lead editorial review of the just-ended Supreme Court term, which laid down a puzzling mixed bag of decisions, some highly pleasing to conservatives (the gun-rights ruling), and some offensive ones (declaring the death penalty for child rape unconstitutional). At least this case the Times doesn't foolishly call this court "far right," as it did in last week's apoplecticfit disguised as an editorial on the Court's 5-4 decision upholding the Second Amendment's right to bear arms, although it did warn of the "far-right bloc" that would take command if McCain appointed judges.

In itslatest editorial, "A Supreme Court on the Brink," the Times warned:

The Supreme Court abandoned its special role in protecting voting rights when it rejected a challenge to Indiana's harshly anti-democratic voter ID law. Critics warned that the law, which bars anyone without a government-issued photo ID from voting, would disenfranchise poor people, minorities and the elderly, all of whom disproportionately lack drivers' licenses. The critics were right. In the Indiana presidential primary, shortly after the ruling, about 12 nuns in their 80s and 90s were turned away at the polls for not having acceptable ID.

This seems to be the one verifiable case of vote deprivation that's coursed through the liberal press, even though the real story is a bit more nuanced than the "waterhoses and tear gastone" adopted by the Times (for one thing, the elderly nuns had been advised earlier that they'd need updated ID in order to vote).

In a second capital punishment case, the court ruled that the death penalty cannot be imposed for the rape of a child. Horrific as that crime is, the court wisely drew a clear line and said that capital punishment can only be imposed for crimes in which the victim's life was taken.

Note that the Times, with its selectively expansive view of the Constitution, would care, but the Constitution forbids the taking of a life only "without due process of law." The Fifth Amendment in full:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The editorial went through more cases from the concluded term, including liberal rulings that pleased them, but warned darkly that if McCain were elected, the "far-right bloc" would reign supreme.

In placing these rulings in the larger context of the court after two appointments by President Bush - Chief Justice John Roberts and Justice Samuel Alito, both dedicated members of the conservative movement - it is important to note that the Guantánamo decision was 5 to 4. Anthony Kennedy, the court's swing justice, cast the deciding vote. In other cases, like the gun-control decision, the rulings might have been more sweeping and more damaging if the conservative bloc had not needed the moderate-conservative Justice Kennedy's vote to form a majority. One more conservative appointment would shift the balance to the far-right bloc.

If that happens, the court can be expected to push even further in a dangerous direction. It would most likely begin stripping away civil liberties, like the habeas rights vindicated in the Guantánamo case. The constitutional protection of women's reproductive rights could be eliminated. The court might well strike down laws that protect the environment, workers' rights and the rights of racial and religious minorities.

A little Constitutional Studies 101 for the Times: The Constitution says not a word on the matter of abortion. And didn't this Court just uphold the important civil liberty guaranteed by the Second Amendment?

The editorial ended by exhorting Times' readers (not in so many words) to vote for Obama:

The court was teetering on the brink in this term. Voters should keep that firmly in mind when they go to the polls in November.